David C. Kohler


In 1964, the United States Supreme Court decided that defamatory statements are entitled to some first amendment protection. In later cases, the Court has continued to redefine the constitutional landscape of defamation, but many questions remain unanswered. In their attempts to accommodate the Supreme Court's new doctrine, the Virginia state courts have often struggled with the task of redefining their common law rules so that they are consistent with the constitutional prescriptions. Since 1985, the Virginia Supreme Court has issued five opinions attempting to clarify various aspects of defamation law in Virginia. Part I of this article examines these opinions and discusses their effect on defamation law in the commonwealth. Part II addresses, in greater detail, specific defamation issues that remain unresolved in Virginia. Among the questions considered in Part II are whether Virginia is likely to use a reasonable journalist or ordinary man negligence standard in private figure defamation cases against a professional disseminator of news; the unpredictability of the negligence standard; and limitations placed upon this standard by the supreme court. In addition, it discusses the principles that will likely govern the opinion defense, and finally, considers what remains of the special damages requirement in Virginia defamation cases.

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