Certain plaintiffs’ law firms follow a troubling playbook: they draft a complaint loaded with inflammatory (and often false) accusations, file it, and then issue a press release repeating the most sensational allegations. The tactic is designed to spread the allegations far and wide while hiding behind Virginia’s absolute privilege afforded to statements made in connection with legal proceedings. The complaint itself is untouchable, because statements made in judicial proceedings are absolutely privileged. The press release does the real damage, and its authors assume a privilege (either qualified or absolute) extends to public statements about the case provided they fairly characterize the allegations in the lawsuit. The fair-report privilege protects journalists covering litigation. The Virginia Supreme Court has not yet decided whether that privilege is available to the party who wrote the allegations in the first place. I think the court, if faced with the issue, would likely hold that press releases issued by the plaintiff or the plaintiff’s counsel are protected only by a qualified privilege that can be lost through abuse.
Virginia extends absolute immunity to statements made in the course of a judicial proceeding that are relevant and pertinent to the matter under inquiry, even when they are knowingly false. (See Lindeman v. Lesnick, 268 Va. 532 (2004)). The privilege protects the adjudicative process by letting parties, counsel, and witnesses speak freely to the tribunal. A press release is not part of the legal proceedings and therefore would not ordinarily be covered by the absolute judicial privilege. In the circuit-court case of D’Alfio v. Theuer that I wrote about several years ago, the court refused to extend the absolute privilege to a lawyer’s republication of a pleading to the media. There, a lawyer filed a lawsuit against a sea captain for employment discrimination and then faxed the complaint to the press. The court rejected the absolute-privilege defense because the captain was suing over the republication to reporters, a separate publication outside any judicial proceeding. The court held instead that the republication was covered by a qualified privilege that would be defeated if the lawyer shared the complaint with the press maliciously.
Virginia also recognizes a “fair report” privilege that offers protection for publishing public records (such as court filings) if the publication is a fair and substantially correct account of the record. (See Alexandria Gazette Corp. v. West, 198 Va. 154 (1956)). While the Virginia Supreme Court hasn’t explicitly ruled on whether the privilege is qualified or absolute, the weight of authorities suggests that the privilege is merely qualified and that it can be lost if abused. Here’s what the court wrote in Alexandria Gazette:
Privilege in reporting a judicial record is not measured by the legal sufficiency of the charges made in the judicial pleadings or the truth of those charges. The privilege consists of making a fair and substantially true account of the particular proceeding or record. “The general rule, which has been repeatedly stated by this court, is that it is the court’s duty to determine as a matter of law whether the occasion is privileged, while the question of whether or not the defendant was actuated by malice, and has abused the occasion and exceeded his privilege are questions of fact for the jury.”
(See 198 Va. at 160). This language seems to suggest that an unscrupulous lawyer could not escape liability for circulating a press release that republishes knowingly false allegations made in a court filing. The D’Alfio court also saw it this way, applying the fair report privilege to the lawyer’s fax to the media while holding that common-law malice could defeat it.
The Restatement of Torts takes a different approach. According to the Restatement, the fair-report privilege is lost only if the report is unfair or inaccurate, not because the publisher knows the underlying allegations are false. If Virginia were to follow the Restatement, a lawyer who accurately publicizes a complaint he knows to be false would seemingly be protected. However, comment c to § 611 provides that “[a] person cannot confer this privilege upon himself by making the original defamatory publication himself and then reporting to other people what he had stated.” (See Restatement (Second) of Torts § 611 cmt. c (1977)). So even under the Restatement, the author of a defamatory accusation couldn’t launder it by filing a court case and then circulating a press release about it.
Unlike Virginia, New York has addressed the issue head-on. New York’s fair-report privilege is statutory and, by its terms, absolute. (See N.Y. Civ. Rights Law § 74). Yet in Williams v. Williams, 23 N.Y.2d 592 (1969), the Court of Appeals held that the statute cannot be invoked by one who maliciously institutes a proceeding alleging false and defamatory charges in order to disseminate them. New York courts continue to apply the exception to litigants who publicize their own pleadings. (See, e.g., Halcyon Jets, Inc. v. Jet One Group, Inc., 69 A.D.3d 534 (1st Dep’t 2010), where the court wrote that the challenged press release “was not the reportage of an independent publisher but rather was issued by the defendants themselves.”).
Lawyers who want to publicize a client’s good-faith lawsuit can do so safely: announce the filing, link to the complaint, and resist the urge to characterize it. Those who go further, and especially those who file a pleading as the predicate for a media campaign, should not count on privilege to protect them.