It’s Not Defamatory To Call A Lawyer A Liar

The Virgin Islands Supreme Court has held that calling an attorney a liar on a website was not defamatory

On appeal from a Superior Court order holding a defamation defendant in contempt for failing to comply with an earlier order finding him liable and ordering him to disable and remove several websites containing allegedly defamatory statements made against the plaintiff attorney and his law firm, the statements are held to be not defamatory as a matter of law. Only statements that are provable as false are actionable. Where a statement is so imprecise or subjective that it is not capable of being proved true or false, it is not actionable in defamation. Hyperbole and expressions of opinion not provable as false fail to meet this actionability element of a defamation claim, and are also constitutionally protected. Plaintiffs had the burden of proving that the statements were false as part of their case-in-chief at trial. While calling a private individual a liar could, in some very limited circumstances, permit recovery for defamation, such statements must still be provable as false in order to constitute actionable defamation. In this case, as a matter of law all of the defendant’s allegedly defamatory statements are personal opinions representing subjective viewpoints and beliefs about the plaintiffs that cannot be proved as false. These statements both fail to satisfy the requirements of defamation under Virgin Islands law, and are entitled to First Amendment protection. Therefore, the Superior Court’s order finding the defendant liable for making defamatory statements against the plaintiffs is reversed, the resulting contempt sanctions are vacated, and the matter is remanded to with directions to dismiss the complaint with prejudice.

The facts

A dispute between Simpson and the Board of Directors of Sapphire Bay Condominiums West arose in 2003, when Simpson, who owned a unit at Sapphire Bay, sought to make several alterations to his unit. The Board, however, unanimously denied his request, finding that Simpson provided them with insufficient notice of the change. At the time, Andrew L. Capdeville, Esq., a licensed Virgin Islands attorney, was retained to provide legal counsel to the Board. After the Board denied his request, Simpson mailed a letter to every member of the Board challenging the Board’s actions and contending that the Board failed to comply with the condominium’s bylaws, particularly with regard to the notice provisions. Simpson’s letter also stated that the Board’s lawyer—presumably Capdeville—was “dishonest,” that Simpson was “concerned that the Board and the Board’s lawyer have so little respect for the By-Laws,” that “[i]t is a terrible thing to do, and a waste of owner money, for the Board to hire that lawyer and to allow him to write . . . dishonest letters,” and that “[t]he owners should never use that dishonest lawyer again.”

The next month, Simpson filed a grievance against Capdeville with the Board on Professional Responsibility. Around the same time, Simpson purportedly published a website, first located at www.sapphirebaycondos.com and later relocated to www.usvicondos.com, which reprinted the grievance in its entirety. These websites also included numerous other references to Capdeville, including a headline stating “Lawyer Lies”; a sentence stating that Capdeville “had proven himself to be dishonest”; a claim that Capdeville’s communications “contained lies and many other statements” that violate ethical rules; a claim that “Capdeville’s conduct . . . was so terrible” that “Simpson filed a [g]rievance”; a statement that Capdeville “is a danger to the [Sapphire Bay Condominiums West] owners . . . who have paid for (his) advice” and that his advice resulted in it “breaking the law”; and a claim that Capdeville is a “disgrace” to the legal profession and that law schools should use his conduct as a case study of “[w]hat lawyers should not do.”

Capdeville sued and prevailed in the trial court and received a dollar in damages. Simpson was held in contempt for failure to take down the web page.

The court here found no defamation

While calling a private individual a liar could, in some very limited circumstances, permit recovery for defamation, such statements must still be provable as false in order to constitute defamation under Virgin Islands law and to survive First Amendment scrutiny… a headline stating “Lawyer Lies” and an article claiming that Capdeville is a “liar” who has “proven himself to be dishonest,” also fail to amount to actionable statements that can be proved as false because “the term ‘lying’ applies to a spectrum of untruths including ‘white lies,’ ‘partial truths,’ ‘misinterpretation,’ and ‘deception.’” Underwager v. Channel 9 Australia, 69 F.3d 361, 367 (9th Cir. 1995). “As a result, the statement is no more than nonactionable rhetorical hyperbole, a vigorous epithet used by those who considered [the plaintiff’s] position extremely unreasonable.” Id. (citation omitted); see also Sullivan v. Conway, 157 F.3d 1092, 1097 (7th Cir. 1998) (“[T]o say that he is a very poor lawyer is to express an opinion that is so difficult to verify or refute that it cannot feasibly be made a subject of inquiry by a jury.” (citations omitted)); Gardner, 563 F.3d at 989 (“lying” statements were not sufficiently factual to imply a false factual assertion in the context of “loose, hyperbolic statements . . . which were an obvious exaggeration”); James v. San Jose Mercury News, Inc., 20 Cal. Rptr. 2d 890, 896–98 (Cal. Ct. App. 1993) (article describing lawyer as engaging in “sleazy, illegal, and unethical practice” fell into protected zone of “imaginative expression” or “rhetorical hyperbole”); accord Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 284–86 (1974) (use of the word “traitor” could not form the basis of a defamation action since it was used “in a loose, figurative sense” and was “merely rhetorical hyperbole, a lusty and imaginative expression of . . . contempt”); Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (the word “blackmail” is no more than “rhetorical hyperbole”); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, 39 F.3d 191, 196 (8th Cir. 1994) (“‘Unfair’ is a term requiring a subjective determination and is therefore incapable of factual proof.”).

As there was no defamation, the complaint was dismissed and the contempt vacated. (Mike Frisch)