The Volokh Conspiracy
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From Tika v. Jack, decided today by Judge Norman Moon (W.D. Va.):
The plaintiff and defendant dated for two months. When their relationship deteriorated, the defendant allegedly began sending the plaintiff abusive text messages. Then, when in her telling, the plaintiff blocked his phone, the defendant sent the plaintiff's employer—a D.C. government agency—emails saying that the plaintiff had been using her work phone to harass him, trespassed on his property, and had made him and his daughter fear for their lives. The defendant also forwarded the plaintiff's employer numerous private text messages she and the defendant had exchanged. The plaintiff now fears that her employment has been put in jeopardy and alleges that she has suffered significant emotional distress at having such lies about her told to her employer….
The court held that plaintiff had alleged enough to proceed on her defamation claim:
Defendant … contends that the allegations in the complaint and Plaintiff's admissions demonstrate that the messages he sent were "substantially true," and that at best there were "[s]light inaccuracies" in his email to Plaintiff's employer. Defendant notes, for instance, that Plaintiff admitted calling or texting Defendant multiple times, including once with her government cell phone, and argues that he "could very well have viewed that behavior as harassment." … allegations on this motion to dismiss, Plaintiff nonetheless expressly alleged that she did not "use[ ] her DC government procured cell phone to send [Defendant] harassing messages." Moreover, 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. At this stage of the case and accepting the truth of Plaintiff's allegations in her complaint and drawing all reasonable inferences in her favor—as this Court must—Defendant has not shown the "substantial truth" of his statements such as would defeat the defamation claim as a matter of law.
Trying another tack, Defendant argues that statements at issue in his emails were nothing more than "statement[s] of opinion." Defendant specifically contends that the heading of his first email, "Harassment of Taxpayer," was "a constitutionally protected expression of opinion." … [But t]he heading "Harassment of Taxpayer" in the subject line of Defendant's first email is reasonably read in conjunction with the body of the email which states that Plaintiff "used her DC government procured cell phone to send me harassing messages," and that Defendant had "asked her repeatedly to cease and desist, however, she has not."
Moreover, in Defendant's second email he added further factual content to his use of the term "harassment" ("All I want is her to STOP harassing me."), including by conveying that Plaintiff had trespassed on his property. Thus, 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.
Defendant further argues that the statements in his emails "do not rise to the level of defamatory words," as none of them make Plaintiff appear "odious, infamous, contemptible, or ridiculous," and "[e]ven taken together, the statements do not have that impact." The Court disagrees with Defendant. Under D.C. law, "[a] statement is defamatory if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community," however, the language "must be more than unpleasant or offensive; the language must make the plaintiff appear odious, infamous, or ridiculous." Moreover, as relevant here, "a statement constitutes defamation per se when it 'imput[es] to a person a … matter affecting adversely a person's fitness for trade, business, or profession[.]" …
On a motion to dismiss and accepting Plaintiff's allegations as true and drawing all reasonable inferences in her favor, the Court concludes that Defendant's statements to Plaintiff's employer, 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. Plaintiff has stated a plausible claim for defamation per se, as Defendant's statements including those that Plaintiff misused government property (her cell phone) to harass him, call into question Plaintiff's fitness for her position, and therefore she needn't have pleaded general damages. Indeed, Defendant himself suggested to Plaintiff's employer he thought such behavior rendered her unfit to work in the office—"Is this type of behavior deemed acceptable from an employe[e] within your office? Please advise." …
And the court held the same as to plaintiff's "insulting words" claim under Virginia Code § 8.01-45, "All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace"—but only because the Virginia Supreme Court has generally limited the statute to false insulting words, and thus "to be virtually co-extensive with the common law action for defamation." Potomac Valve & Fitting Inc. v. Crawford Fitting Co (4th Cir. 1987). (See, e.g., Crawford v. United Steelworkers, AFL-CIO (Va. 1985), rejecting an insulting words lawsuit because "To call a person a 'cocksucker' does not, under the circumstances of this labor dispute, convey the false representation that the individual engaged in sodomy. Nor does calling a person a 'motherfucker,' under the circumstances of this case, convey the false representation that the person engaged in incest.").
You can see more factual details here (pp. 2-5).