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YEAGLE v. COLLEGIATE TIMES


YEAGLE
v. COLLEGIATE TIMES


February 27, 1998
Record No. 971304

SHARON D. YEAGLE

v.

COLLEGIATE TIMES

OPINION BY JUSTICE
ELIZABETH B. LACY
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY

Ray W. Grubbs, Judge
Present: All the Justices


In this appeal, we
consider whether the trial court correctly dismissed a defamation
action because the phrase at issue could not reasonably be
interpreted as stating actual facts about the plaintiff as a
matter of law.

Sharon D. Yeagle is
employed as an assistant to the Vice President of Student Affairs
at Virginia Polytechnic Institute and State University. As part
of her responsibilities, she facilitated the participation of
students in the 1996 Governor's Fellows Program. The Collegiate
Times, the University's student newspaper, published an article
describing the University's successful placement of students in
the program. The text of the article surrounded a block quotation
in larger print attributed to Yeagle. Beneath the quotation, the
phrase "Director of Butt Licking" was printed under
Yeagle's name.

Yeagle filed a
motion for judgment against the Collegiate Times, alleging that
the phrase "Director of Butt Licking" constituted
common law defamation, defamation
per se,
and use of insulting words under Code ? 8.01-45. The trial court
sustained the Collegiate Times' demurrer on all counts and
dismissed the case. The trial court held that the phrase at issue
was "void of any literal meaning," and that it would be
unreasonable to interpret the phrase as conveying any factual
information about Yeagle.

We awarded Yeagle an
appeal limited to the question whether the trial court erred in
holding that, as a matter of law, the phrase "Director of
Butt Licking" cannot convey a defamatory meaning. We
conclude that the trial court did not err in sustaining the
demurrer because the offending phrase cannot support an action
for defamation -- an issue properly determined by the court as a
matter of law.

Causes of action for
defamation have their basis in state common law but are subject
to principles of freedom of speech arising under the First
Amendment to the United States Constitution and Article I,
Section 12 of the Constitution of Virginia. The United States
Supreme Court has identified constitutional limits on the type of
speech that may be the subject of common law defamation actions.
Thus, speech which does not contain a provably false factual
connotation,
[1] or statements which cannot
reasonably be interpreted as stating actual facts about a person
cannot form the basis of a common law defamation action.
Milkovich
v. Lorain Journal Co.
, 497 U.S. 1, 16-17, 20 (1990).

In considering the
type of speech that falls beyond that which can support a
defamation action, the United States Supreme Court has recognized
that speakers may use language that is insulting, offensive, or
otherwise inappropriate, but constitutes no more than
"rhetorical hyperbole." Examples include referring to
the negotiating position of a real estate developer as
"blackmail,"
Greenbelt Coop. Publ'g Ass'n,
Inc. v. Bresler
, 398 U.S. 6, 13-14 (1970), defining
a labor union "scab" to be a "traitor,"
Letter
Carriers v. Austin
, 418 U.S. 264, 284-86 (1974), or
publishing a parody of an advertisement referring to a public
figure,
Hustler Magazine, Inc. v. Falwell,
485 U.S. 46, 50 (1988). In each of these instances, no reasonable
inference could be drawn that the individual identified in the
statements, as a matter of fact, engaged in the conduct
described. The statements could not reasonably be understood to
convey a false representation of fact.
See
Milkovich, 497 U.S. at 16-17.

Similarly, we have
recognized that words used to describe a member of a labor union
in the course of a labor dispute, while "disgusting,
abusive, [and] repulsive," will not support a cause of
action for defamation for the same reason -- they could not
"reasonably be understood . . . to convey a false
representation of fact."
Crawford v. United
Steel Workers, AFL-CIO
, 230 Va. 217, 234-35, 335
S.E.2d 828, 839 (1985),
cert. denied,
475 U.S. 1095 (1986). While
Crawford
involved statements made in the context of a labor dispute which,
under federal law, requires a wider tolerance of rhetoric which
might otherwise support an action for defamation, the case
nevertheless reaffirms that, to be actionable, the alleged
defamatory statements must still be understood to convey a false
representation of fact.
See also
Freedlander v. Edens Broadcasting, Inc.,
734 F.Supp. 221, 225-27 (E.D. Va. 1990);
Polish Am.
Immigration Relief Comm., Inc. v. Relax
, 189 A.D.2d
370, 373-74, 596 N.Y.S.2d 756, 758-59 (1993).

Whether statements
complained of in a defamation action fall within the type of
speech which will support a state defamation action is a matter
for the trial judge to determine as a matter of law, just as the
trial judge, not the finder of fact, must determine whether a
statement is defamatory
per se
because it imputes the commission of a crime involving moral
turpitude.
Chaves v. Johnson, 230 Va.
112, 119, 335 S.E.2d 97, 102 (1985);
Great Coastal
Express, Inc. v. Ellington
, 230 Va. 142, 148, 334
S.E.2d 846, 850 (1985).

Yeagle argues that
the demurrer should have been overruled and the case resolved by
a jury because the phrase at issue conveys factual information
and thus can support her action for defamation. Yeagle argues
that a literal interpretation of the phrase imputes to her a
criminal offense involving moral turpitude under the sodomy
statute, ? 18.2-361(A), and the phrase, therefore, is defamatory
per se.
[2] She also asserts that the
phrase carries with it the implication that she curries favor
with others by disingenuous behavior or directs others to do so.
According to Yeagle, such an implication is defamatory
per
se because it suggests that she performs
the duties of her job in an artificial, shallow, or other manner
that generally lacks integrity, and it prejudices her in her
career. Finally, she argues that, even if the phrase is not
defamatory
per se,
it is actionable defamation because it injures her reputation and
holds her up to ridicule, citing
Adams v. Lawson,
58 Va. (17 Gratt.) 250, 255-56 (1867). We disagree.

The threshold issue,
whether the complained of phrase including inferences fairly
attributable to it could reasonably be interpreted as stating
actual facts about Yeagle and, therefore, be actionable
defamation, is a matter of law to be resolved by the trial court.
In this case, the phrase "Director of Butt Licking" is
no more than "rhetorical hyperbole." The phrase is
disgusting, offensive, and in extremely bad taste, but it cannot
reasonably be understood as stating an actual fact about Yeagle's
job title or her conduct, or that she committed a crime of moral
turpitude.

Yeagle's assertion
that the phrase connotes a lack of integrity in the performance
of her duties also fails and, therefore, cannot properly be
considered as the basis for a defamation action. While
"every fair inference" in a pleading may be used to
determine whether the words complained of are capable of a
meaning ascribed by innuendo, inferences cannot extend the
statements, by innuendo, beyond what would be the ordinary and
common acceptance of the statement.
Carwile v.
Richmond Newspapers, Inc.
, 196 Va. 1, 8, 82 S.E.2d
588, 592 (1954). Applying this principle, a statement that an
attorney did not report certain payments cannot be extended by
inference to mean that the attorney acted improperly, for
purposes of a defamation action.
Perk v. Vector
Resources Group, Ltd.
, 253 Va. 310, 316-17, 485
S.E.2d 140, 143-44 (1997). In this case, as we have said, the
litigated phrase itself cannot be taken as asserting actual facts
about Yeagle. Furthermore, considering the phrase at issue in the
context of the entire article,
see Richmond
Newspapers, Inc. v. Lipscomb
, 234 Va. 277, 297-98,
362 S.E.2d 32, 43 (1987);
The Gazette v. Harris,
229 Va. 1, 22-23, 305 S.E.2d 713, 729 (1985), we find nothing
which supports an inference that Yeagle performed her job with a
lack of integrity or that she directed others to do so. The
article was complimentary of Yeagle and the program with which
she was associated.

Accordingly, because
the phrase at issue could not reasonably be considered as
conveying factual information about Yeagle, and therefore could
not support a cause of action for defamation, we will affirm the
judgment of the trial court.

Affirmed.

 

 

JUSTICE KINSER, with
whom JUSTICE KOONTZ joins, dissenting.

The issue in this
appeal is whether the phrase "Director of Butt Licking"
conveys any defamatory factual information about Yeagle. While
the trial court must determine as a matter of law whether this
phrase is defamatory
per se,
Chaves v. Johnson, 230 Va. 112, 119, 335
S.E.2d 97, 102 (1985), in ruling on a demurrer, the trial court
is "confined to the legal sufficiency of a pleading, and
[must not consider] disputed facts."
Hop-In Food
Stores, Inc. v. Serv-N-Save, Inc.
, 237 Va. 206, 209,
375 S.E.2d 753, 755 (1989) (citing
Bellamy v. Gates
and Gill
, 214 Va. 314, 315-16, 200 S.E.2d 533, 534
(1973)). "A demurrer admits the truth of all properly
pleaded material facts. 'All reasonable factual inferences fairly
and justly drawn from the facts alleged must be considered in aid
of the pleading.'"
Ward's Equipment v. New
Holland North America
, 254 Va. 379, 382, 493 S.E.2d
516, 518 (1997) (quoting
Fox v. Custis,
236 Va. 69, 71, 372 S.E.2d 373, 374 (1988)).

Collegiate Times
acknowledges that the phrase "Director of Butt Licking"
implies that a person either curries favors with others by
disingenuous behavior such as fawning or directs others to do so.
In fact, the trial court recognized that this title conveys the
inference that Yeagle "cultivates favors from others or
directs those who do." "In order to render words
defamatory and actionable it is not necessary that the defamatory
charge be in direct terms but it may be made indirectly, and it
matters not how artful or disguised the modes in which the
meaning is concealed if it is in fact defamatory."
Carwile
v. Richmond Newspapers
, 196 Va. 1, 7, 82 S.E.2d 588,
592 (1954).

The phrase is a
factual assertion regarding Yeagle's job performance and imputes
to her an unfitness to perform the duties of her job or lack of
integrity in the performance of such duties.
Fleming
v. Moore
, 221 Va. 884, 889, 275 S.E.2d 632, 635
(1981). The phrase also prejudices Yeagle in her profession.
Id.
At common law, defamatory words are actionable
per
se if they satisfy either of these
criteria.
Id.

For these reasons, I
dissent and would reverse the judgment of the trial court and
remand this case for further proceedings.

 

 

 

FOOTNOTES:

[1] Speech which does not contain
a provably false factual connotation is sometimes referred to as
"pure expressions of opinion,"
see,
e.g., Williams v. Garraghty,
249 Va. 224, 233, 455 S.E.2d 209, 215 (1995), although the
Supreme Court has specifically declined to hold that statements
of opinion are categorically excluded as the basis for a common
law defamation cause of action.
Milkovich v. Lorain
Journal Co.
, 497 U.S. 1, 18-21 (1990).

[2] A statement is defamatory per
se if it (1) imputes the commission of a
criminal offense involving moral turpitude for which a party may
be convicted; (2) imputes that the person is infected with a
contagious disease which would exclude the party from society;
(3) imputes an unfitness to perform the duties of a job or a lack
of integrity in the performance of the duties; or (4) prejudices
the party in her profession or trade.
Fleming v.
Moore
, 221 Va. 884, 889, 275 S.E.2d 632, 635 (1981).

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