Virginia Lawyers Weekly VA Lawyers Weekly
Where a woman alleged that her ex-boyfriend sent false and defamatory emails to her government employer after their relationship ended, her defamation and insulting words claims survive his motion to dismiss.
Judge Norman K. Moon of the Western District of Virginia found that the alleged statements, “specifically those saying Plaintiff misused Government property (her phone) to send him ‘harassing messages’ and conveying that she had ‘trespassed’ on his property, were capable of a defamatory meaning.”
Moon concluded that the plaintiff had “stated a plausible claim of defamation under D.C. law and a claim of insulting words under Virginia law,” but he dismissed her false light and intrusion upon seclusion claims.
The July 26 opinion is Tika v. Jack (VLW 022-3-314).
J. Lloyd Snook, of Snook & Haughey, P.C., in Charlottesville, represented Jack. He is optimistic that the insulting words claim will ultimately fail because while “the judge cited a Virginia case from 1950 to support his ruling, the general law about insulting words has progressed since then.”
He pointed to the U.S. Supreme Court’s 1971 decision in Cohen v. California, which held that profane language on a protestor’s jacket was protected by the First Amendment and unlikely to breach the peace.
In Snook’s experience, “Virginia judges have tended to find insulting words aren’t actionable unless they’re likely to immediately breach the peace.”
Harassment
Selamawit Tika dated Jonathan Jack for two months. According to Tika, their relationship soured the day she asked him to stop talking about politics and race in front of her children.
Later that day, Jack used WhatsApp to send Tika 26 messages she described as “insulting, vulgar, vile and nasty.”
The next day, Tika went to Jack’s residence to retrieve her belongings. When Jack refused to give her anything, Tika left. The following day, she messaged Jack with a negative Airbnb review about him.
Despite Tika saying that she would not text him again and blocking his number, Jack later responded “cease and desist — stop texting me.” Tika didn’t respond.
Later that evening, Jack emailed Tika’s federal government employer with accusations that she had used her government-issued cellphone to send harassing messages, despite his repeatedly asking her to stop.
The next day, while Tika was on a long-planned vacation to visit family in Ethiopia, Jack sent another email to her employer with screenshots of their private communications.
He again accused Tika of harassment and claimed she had trespassed on his property, citing the prior day’s events at his home.
One of the screenshots he sent showed a message in which Tika said he could “generate as many numbers as you want [a]nd delete after pass[ing] your messages across. So you’re holding onto some online one time numbers in your block list hehe. So blocking is really nothing.”
Jack said that message was the “final straw” that convinced him to email her employer because he was afraid for his daughter’s safety.
But according to Tika, Jack’s daughter doesn’t live with him and wasn’t there when she visited.
Jack also sent other screenshots that showed Tika talking about intimate subjects, such as lingerie, pornography and prostitutes.
Tika said the partial messages Jack disclosed were intended to suggest that “she [had] no boundaries, that she lack[ed] good judgment, that she [was] sexually promiscuous, morally and ethically compromised, and mentally unstable.”
Tika said that reading the email to her employer made her cry uncontrollably. She became anxious and fearful for her job and began to suffer from panic attacks.
She filed suit against Jack for defamation, false light/invasion of privacy, intrusion upon seclusion, conversion, and insulting words.
“Defendant’s contrary statement to Plaintiff’s employer that Plaintiff used her government cell phone to send him harassing messages is not made ‘substantially true’ by Plaintiff’s admission that she sent ‘one’ innocuous text message to him that her ‘personal phone had crashed and she would not be able to text him that moment.’ Nor does Plaintiff’s admission that she went to Defendant’s home to gather her belongings, render it ‘substantially true’ that, as Defendant conveyed, Plaintiff was ‘trespassing’ on his property.”
– Judge Norman K. Moon
Defamation
Jack argued the emails didn’t include false statements, or at least included statements he believed to be true, like his statement that plaintiff had been using her government cellphone to send harassing messages.
But Moon said, at this stage in the case, he had to accept the truth of Tika’s allegations that she neither harassed Jack nor trespassed on his property.
Jack next claimed that Tika’s allegations and admissions demonstrated that the messages he sent were “substantially true” and that at most there were “slight inaccuracies” in his email.
He pointed to Tika’s admission that she called or texted him multiple times, including once with her government cellphone, to argue that he could have viewed that behavior as harassment.
Moon disagreed.
“Defendant’s contrary statement to Plaintiff’s employer that Plaintiff used her government cell phone to send him harassing messages is not made ‘substantially true’ by Plaintiff’s admission that she sent ‘one’ innocuous text message to him that her ‘personal phone had crashed and she would not be able to text him that moment,’” Moon wrote. “Nor does Plaintiff’s admission that she went to Defendant’s home to gather her belongings, render it ‘substantially true’ that, as Defendant conveyed, Plaintiff was ‘trespassing’ on his property.”
Moon also rejected Jack’s argument that his statements were simply statements of opinion and that his use of the heading “Harassment of Taxpayer” in the first email made it constitutionally protected speech.
The judge said the heading could be “reasonably read in conjunction with the body of the email” which accused Tika of harassment.
In addition, the second email “added further factual content to his use of the term ‘harassment’ … by conveying that Plaintiff had trespassed on his property.”
Moon concluded that “the alleged defamatory statement in context contained or implied provably false statements of fact, which added factual content to Defendant’s allegation that Plaintiff had ‘harassed’ him — taking those statements out of the realm of an unactionable opinion.”
Finally, the judge found that Tika had plausibly stated a claim for defamation per se because Jack’s statements called into question “Plaintiff’s fitness for her position.”
Insulting words
Under Virginia Code § 8.01-45, “insulting words” are those “which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.”
Jack argued that the statute only penalized words made in face-to-face confrontation with a clear and present danger of violence.
But the Supreme Court of Virginia “has explicitly acknowledged written statements may be actionable as insulting words,” Moon pointed out.
“The Court agrees with the weight of authority that ‘written communications may serve as the basis of an insulting words claim, at least where the words are otherwise insulting and tend to violence,” the judge concluded.
Remaining claims
Moon dismissed Tika’s false light and intrusion claims under D.C. law, because she could not meet the requirement that “the matter [be] made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”
