Tort – Defamation – Political Campaign Literature

In this defamation action by a candidate for the Virginia Senate in 2003 against his opponent, the incumbent, based on statements in campaign literature, a Richmond Circuit Court sustains defendant’s demurrer to the claims based on failure to pay debt and bribery, but overrules the demurrer on the claims related to bankruptcy and taking money from children.

The court agrees with plaintiff – while the amended complaint admits the publications as stated, defamation can be made when aided by innuendo, inference or insinuation. In addition, statements consisting of matters which are provably false when seen in the light of innuendo can be viewed as not involving opinion.

This analysis covers the statements regarding taking money and bankruptcy. The “bribery” statement could implicate rules governing defamation per se. However, the bribery statement came after statements by a co-defendant concerning a $50,000 offer made to her by plaintiff to drop out of the race. Defendant is alleged to have sent a mailing reacting to the co-defendant’s statement and plaintiff’s offer with a cover page providing the definition of bribery. Defendant’s statement in the context could not be proved as an allegation that plaintiff was falsely accused of bribery because, by the words used, the $50,000 was not given to influence her as a candidate in any official governmental decision. And the debt statement about plaintiff emanates from a judgment obtained by a bank against plaintiff and others which was unpaid for 10 years, in 1996. These statements on their face express truth and thus would not be actionable.

Regarding the remaining grounds for demurrer, the statements arose during a political campaign made relative to the qualifications of a candidate for elective office. Even though such speech is subject to wide First Amendment protections, on demurrer, the question is whether the allegations set up a cause of action as against defendant’s argument that they consist of merely rhetorical hyperbole and are privileged and do not establish malice.

Plaintiffs allege generally that defendant knew his statements were false, that he acted with malice or reckless indifference and held a personal hatred toward them. Any privilege is lost if plaintiff can show by clear and convincing evidence the existence of malice. At this pleading stage, plaintiff has stated sufficient facts to withstand demurrer with reference to the bankruptcy and children statements, but not the debt and bribery ones, and the court will so rule.

The court also overrules defendant’s demurrer to the claim made by the second plaintiff, based on a statement in a political flyer regarding the second plaintiff taking money from children. The flyer makes the assertion that the plaintiff candidate “and a few other wealthy partners” were in on taking money from children. The flyer contains a reproduced portion of the pleading including the caption of a Texas lawsuit brought by the parents of the children wherein plaintiff candidate, the second plaintiff and others are named as defendants. The court must give the benefit of all reasonable, implied and inferred facts from those alleged in plaintiff’s pleading. The “few other wealthy partners” portion of the flyer, along with the caption in the lawsuit wherein the second plaintiff is named, can only be read to mean that the second plaintiff is involved in the group of “wealthy businessmen” who had a hand in taking money from children, an allegation plaintiff has alleged is false and defames him. At this stage the second plaintiff has alleged sufficient facts that the statement was of and concerned him and would be so understood by persons who read it.

The only defamatory statement claimed against defendant by the second plaintiff involves the taking money from children. Plaintiffs are two separate individuals asserting separate causes of action in one lawsuit. This represents an improper union of parties and causes of action in one case and the remedy is found in Va. Code 8.01-5. Plaintiff can elect which of the plaintiffs and respective causes of action shall be dropped from this lawsuit. The dropped claim(s) shall not abate.

Borgenicht v. Norment (Hughes, J.) No. CL03R-2492, Aug. 19, 2008; Richmond Cir.Ct.; Verbena M. Askew for plaintiffs; David P. Corrigan for defendant. VLW 008-8-182, 5 pp.