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Implied defamation in newspaper article not reasonable as a matter of law

Webb v. Virginian-Pilot Media Companies
--- S.E.2d --- (2014) (not yet published)

by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (

In November 2008, Plaintiff, Phillip Webb’s high school aged son, and another student, both students at Great Bridge High School (“GBHS”) were involved in a physical altercation during non-school hours. As a result of the altercation, the Plaintiff’s son was charged with felony offenses and later convicted of a misdemeanor offense. Despite the conviction, Plaintiff’s son was permitted to remain in school, continue to compete on the track team, graduate, and attend college on a track scholarship. By contrast, the school system offered to allow the other student the option to complete his final year at another school. The student instead dropped out of school, obtained his GED and anticipated beginning a shipyard apprenticeship program. At the time of the events, Plaintiff was an assistant principal at another school in the system, and had previously been a very successful pole vaulting coach at GBHS.

The Virginian-Pilot, a local newspaper, published an article noting the disparity between the sanctions levied by GBHS. The article paraphrased a deputy director at the Virginia High School League, who observed that the principal had the discretion to determine a student’s ability to participate in sports, and further observed that the school had the authority to expel or suspend a student charged with a felony. The article, however, also quoted a school system representative that stated, “[Plaintiff’s son] did not get preferential treatment because of his dad’s position.” The Plaintiff sued the Virginian-Pilot newspaper, claiming that the article implied that the Plaintiff had used his position to obtain preferential treatment for his son.

The Virginian-Pilot initially filed a demurrer on a various bases, including that the article did not create the implications alleged, and expressly denied such implications. The court denied the demurrer. Virginian-Pilot then moved to have the Plaintiff deemed a public official, thus, requiring him to demonstrate malice. The court granted this motion, and the case proceeded to trial. At the close of Plaintiff’s evidence, Virginian-Pilot moved to dismiss the case on the basis that Plaintiff failed to meet the burden of showing malice. The court held the motion under advisement, and after the jury returned with a verdict of $3,000,000, the Court granted Virginian-Pilot’s motion. The Court entered a defense verdict and dismissed the action with prejudice. The Plaintiff appealed, and Virginian-Pilot filed a cross-appeal.

The Plaintiffs argued that it was reversible error for the judge to find the Plaintiff was a public official, and to further grant the motion to strike the judgment. The Supreme Court held that the Plaintiff’s appellate arguments were moot, as the trial court erred in not granting Virginian-Pilot’s original demurrer because the article failed to demonstrate libel or slander as a matter of law. The Court then outlined the standard for defamation in this type of action:

A common law complaint for libel or slander historically included three elements: the inducement, an explanation of the facts demonstrating that the allegedly defamatory statement is actionable; the colloquium, an explanation of how the allegedly defamatory statement refers to the plaintiff, if he is not explicitly named; and the innuendo, an explanation of the allegedly defamatory meaning of the statement, if it is not apparent on its face.

The Court observed that the trial court was obligated to determine “whether, as a matter of law, the article is reasonably capable of the defamatory meaning [Plaintiff] ascribes to it.” The Court held that the article did not state or suggest that the Plaintiff undertook any affirmative action to obtain preferential treatment for his son. The article only observed that Plaintiff’s son had an “uncommon acquaintance” with the GBHS administration, through his father, and it might be reasonably inferred that he would have received a harsher punishment absent these relationships. The article, however, did not reasonably imply that Plaintiff had intervened on behalf of his son, as alleged by the Plaintiff. The Court held that trial court erred in not granting the demurrer, but affirmed the final judgment dismissing the claim with prejudice.