Virginia Lawyers Weekly VA Lawyers Weekly
Where a doctor claimed that multiple statements in two articles were false and defamatory, but a majority of the challenged statements were not actionable, and the doctor failed to plead facts showing any of the statements were made with actual malice, the claims were dismissed.
Background
On Oct. 2, 2021, Gannett Co. Inc. and The Bartlesville Examiner-Enterprise, or BEE, published an article that Dr. Peter McCullough claims contains defamatory statements. On Oct. 6, 2021, they published a second article that Dr. McCullough claims contains defamatory statements. Defendants have filed a motion to dismiss and a motion for attorney’s fees.
Jurisdiction
The BEE challenges both the sufficiency of plaintiff’s allegations and the factual bases supporting his claim that the BEE is subject to personal jurisdiction in this court. Plaintiff’s counsel acknowledged that this court cannot exercise jurisdiction over the BEE and agreed to “drop the BEE as a party Defendant.” Accordingly, because plaintiff does not oppose defendant’s motion to dismiss the BEE for lack of personal jurisdiction, that motion will be granted.
Corporate veil
Gannett claims that the BEE is the entity responsible for publishing the articles containing the defamatory statements plaintiff has identified, meaning that plaintiff’s complaint has to plausibly plead facts that pierce the corporate veil to hold Gannett liable.
In plaintiff’s complaint, he affirmatively alleges that both Gannett and the BEE published the defamatory articles. Gannett nevertheless cites an affidavit from a BEE editor who swore that the BEE published the articles without involvement from Gannett. At this stage, the court cannot consider the affidavit for non-jurisdictional purposes, as it contradicts the allegations in plaintiff’s complaint.
Defamation
The court finds that neither of the statements from the October 2 article that plaintiff has identified are actionable. Both statements “cannot be reasonably interpreted as stating actual facts about an individual.” And both statements contain the sort of “rhetorical hyperbole” that the First Amendment protects. One of the statements in the October 6 article is not actionable for the same reasons.
Two other statements from the October 6 article that Dr. McCullough has identified are also non-actionable because they do not state facts. Another statement that plaintiff challenges is not actionable because it is an opinion based on disclosed facts.
Two other statements are not actionable due to plaintiff’s mischaracterization of them in his complaint. Those two statements are also not actionable for two additional, independent reasons. First, the statements themselves are not defamatory: they merely recount what Dr. McCullough said and then provide a competing view. Second, Dr. McCullough does not challenge the truth of what the October 6 article says: that he made certain statements during his speech.
That leaves three statements from the October 6 article that the court concludes are actionable: (1) the title of the article, which states that Dr. McCullough was “fired for spreading COVID misinformation[;]” (2) the article’s recounting of a report from Medscape that several colleges “cut ties with McCullough for spreading misinformation” and (3) the article’s statement that Dr. McCullough is “a Dallas cardiologist who is largely discredited by the scientific community for his assertions that the COVID-19 vaccines are unsafe and that early treatment options have been suppressed[.]”
Actual malice
Because plaintiff is a limited-purpose public figure, he must adequately plead that Gannett published the allegedly defamatory statements with actual malice. Dr. McCullough claims that the statements are “so highly improbable that only a reckless person would put them in circulation.” Second, he argues that “Gannett knew from peer-review [sic] studies and published research in its possession that Dr. McCullough’s statements about COVID and the ‘vaccines’ were 100% factual and correct, and that the accusations of ‘misinformation[,]’ ‘fraud’ and lying were false.”
Next, he contends that he has alleged facts that Gannett was motivated by “bias and prejudice.” Finally, he maintains that his complaint has alleged facts showing that “Gannett intentionally abandoned all journalistic standards and integrity, including its own code of ethics, in publishing and republishing the false statements.”
None of these allegations is sufficient. Plaintiff has alleged few to no facts about Gannett’s knowledge about the falsity of all of the statements he alleges are defamatory, let alone those the court has found are actionable. His efforts to wave at his other conclusory allegations are woefully insufficient.
Attorney’s fees
Gannett also brings a motion for attorney’s fees pursuant to Virginia’s anti-SLAPP statute. However the court concludes that an award of attorneys’ fees here is not appropriate.
Defendants’ motion to dismiss granted. Defendants’ motion for attorney’s fees denied.
McCullough v. Gannett Co. Inc., Case No. 1:22-cv-1099, April 25, 2023. EDVA at Alexandria (Alston). VLW 023-3-225. 33 pp.
