Doctor’s defamation claims dismissed

Where a doctor who has espoused highly disputed views regarding COVID-19 vaccines sued the Washington Post after it reported on his speech, but he failed to show the challenged statements about a matter of public concern were actionable or were made with actual malice, his suit was dismissed.

Background

Dr. Robert Malone sued the Washington Post for defamation, defamation by implication and insulting words. The challenged Washington Post article examines the advocacy of plaintiff — a “medical doctor and infectious-disease researcher” who has espoused highly-disputed views regarding COVID-19 vaccines.

Quoting both plaintiff and other medical experts, the story identifies plaintiff’s position as contrary to the views articulated by government officials and many medical experts. And this critique is the centerpiece of plaintiff’s defamation claim. In short, he protests that critical statements by rival doctors and the Washington Post are defamatory. Defendant has filed a motion to dismiss.

Defamation

The Washington Post article at issue takes a side in a public debate over the efficacy of COVID-19 vaccines. Unhappy with what he apparently views as the Post’s hyperbolic opposition to his position, plaintiff invites the court to settle the matter. The law, however, counsels that the court decline plaintiff’s invitation to pick winners and losers in a scientific debate, such as that at issue here.

Further still, plaintiff cannot enter a public debate and then cry foul when his views are criticized. Even if defendant’s statements were actionable — and they are not — plaintiff’s defamation claim would still fail because he did not plausibly allege that defendant acted with the necessary intent.

Defamation by implication

A defamation by implication cause of action arises when “a plaintiff alleges that he has been defamed not by statements of fact that are literally true but by an implication arising from them ….” Important here, the First Amendment “greatly restrict[s] the common law where the defendant is a member of the press, the plaintiff is a public figure, or the subject matter of the supposed libel touches on a matter of public concern.” Accordingly, a plaintiff must plausibly allege that the challenged language not only imparts a “false innuendo” but also “suggest[s] that the author intends or endorses the inference.”

In the present case, plaintiff merely claims that the “strong gist and implication of the Statements is that Dr. Malone is intentionally dishonest, deceitful, immoral, unethical and dangerous, and that he is unfit to practice medicine;” he further posits that “WaPo carefully chose its words and purposefully misrepresented facts” by ignoring his point of view. Both statements are conclusory, stating no facts that would make it plausible that defendant intended or endorsed any defamatory meaning in the challenged statements. And “conclusory allegations” will not do.

Insulting words

Virginia’s insulting words statute creates a private cause of action against the use of words “which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.” Virginia courts routinely treat an action for insulting words the same as “an action for slander or libel, for words actionable per se, with one exception, namely, no publication is necessary.”

Consequently, the Fourth Circuit has determined that defamation and insulting words claims “must ineluctably ‘rise or fall together.’” It follows that, for the same reasons we dismissed plaintiff’s defamation claim, the court must also dismiss plaintiff’s insulting words claim.

Anti-SLAPP

Even if plaintiff had alleged plausible claims for relief in his complaint — and again, he has not — defendant would still be immune from liability under Va. Code Ann. § 8.01-223.2 — unofficially known as Virginia’s anti strategic lawsuit against public participation statute, since defendant’s statements were about a matter of public concern and were not published with actual malice.

When deciding whether to award attorney fees pursuant to the statute, other courts have examined whether the action is “frivolous, unreasonable, or without foundation[;]” whether “there is substantial basis in fact and in law for the non-prevailing party to pursue the action[;]” whether the plaintiff “acted out of an improper motive[;]” whether there is an “imbalance in resources” and whether an award of fees would unfairly discourage other plaintiffs from bringing colorable claims. In this case, the above factors weigh against awarding attorney fees and costs to defendant.

Defendant’s motion to dismiss granted.

Malone v. WP Company LLC, Case No. 3:22-cv-00046, Sept. 29, 2023. WDVA at Charlottesville (Moon). VLW 023-3-610. 19 pp.