United States District Court, E.D. Virginia, Richmond Division
JOSEPH D. MORRISSEY, Plaintiff,
WTVR, LLC d/b/a CBS 6, MARK HOLMBERG, and JOHN DOES 1-10 [WTVR Editors and Publishers, Defendants.
MEMORANDUM OPINION (GRANTING DEFENDANT'S MOTION
E. Hudson, Senior United States District Judge
Joseph D. Morrissey ("Morrissey"), is a well-known
public figure in the Richmond, Virginia area. In fact, the
immediate lawsuit is the result of hyperbolic and arguably
deprecating commentary by a Richmond television station
during his candidacy for Mayor of the City of Richmond.
Morrissey contends that the comments by WTVR, LLC ("CBS
6") reporter, Mark Holmberg ("Holmberg"), were
false, defamatory, and insulting. He describes Holmberg's
remarks as imputing his unfitness to serve as mayor and
portraying him as a "stupid liar, who was a sex crazed
maniac." (Compl. ¶ 12, ECF No. 1-2.) Morrissey
seeks $1, 350, 000 in damages. Defendant CBS 6 ("CBS
6") responds that the comments at issue were either the
broadcaster's personal opinion of a public figure, which
is "entitled to the broadest protection the First
Amendment can afford," or factually true. Mahan v.
Nat'l Conservative Political Action Comm., 315
S.E.2d 829, 833 (Va. 1984).
case is presently before the Court on CBS 6's Motion to
Dismiss pursuant to Federal Rule Civil Procedure
12(b)(6). ("Motion," ECF No. 3.) Rule 12(b)(6)
requires the complaint to plead a plausible claim for relief.
Because this Court's jurisdiction is based on diversity
of citizenship, the substantive law of Virginia governs.
Benner v. Nationwide Mut. Ins. Co., 93 F.3d 1228,
1234 (4th Cir. 1996). Both parties have filed memoranda
supporting their respective positions, and the Court heard
oral argument on December 19, 2019.
setting of this lawsuit is a commentary aired on September 2,
2016 by a CBS 6 reporter entitled "Richmond's Mayor
Morrissey?" According to the Complaint, the commentary
was republished online in an article with the headline
"Holmberg: OMG: Sextin' Joe Morrissey is leading the
mayor's race!" (Compl. ¶ 9.) Morrissey contends
that during the broadcast, Holmberg falsely stated,
"During the past couple of years, Richmond has made
national news and international news as a cool place to live,
to visit, to play and party. Now we're making national
news because of this fool?” (Id. ¶ 12
(emphasis in original).) Morrissey characterizes this
allegedly false statement as "the product of spite,
ill-will, and an overt desire to discredit and destroy
Joe's reputation for being extremely intelligent."
next comment at issue concerns Morrissey's son. The
Complaint alleges that
Holmberg intentionally spliced together Joe's comments
regarding his son, Chase, and Holmberg's statement that
Joe was "lying", to make it appear that Joe was
"lying" about being Chase's father. During the
interview, Joe stated, "do you think for a moment if
that child [Chase] is mine, I would run from that? Not-not
going to happen."
(Id. ¶ 13.) At this point, after airing a clip
of the prior interview, Morrissey alleges that Holmberg
stated, "He was lying to me then. He's lied to the
investigators and everybody else in this case. That's why
the state bar is coming after him, again."
(Id.) Morrissey maintains that this portion of the
presentation was an intentionally spliced clip of the
interview and that his "accusation that Joe lied is
malicious, spiteful, the product of ill-will, and is an overt
attempt to discredit and destroy Joe's reputation for
honesty and integrity." (Id. ¶ 14.)
Morrissey added in his Complaint that "at the time of
the on air 'interview', there was no evidence that
the Virginia State Bar was 'coming after Morrissey
next contends that Holmberg's statement that Morrissey
"famously and stupidly published a planation style
'Gone with the Wind' photo of himself and his
wife" was defamatory. (Id. ¶ 15 (internal
quotation marks omitted).) Morrissey alleges that
Holmberg's statements "evince a clear hatred of
[him] with clear racial implications." (Id.)
Morrissey draws the Court's attention to Holmberg's
concluding comment: "Do we really want to elect this
clown, this nonstop, one ring circus, this liar? Or do we
want to elect somebody that's gonna lift us up to the
heights that Richmond so richly deserves?" (Id.
¶ 16.) Morrissey contends that "[t]hese false
accusations impute to Joe dishonesty, a lack of intelligence,
lack of character, lack of sincerity and resolution to
perform the duties of Mayor and imply that Joe is unfit to be
Mayor of the City of Richmond." (Id.)
legal arguments are largely premised on his contention that
Holmberg's broadcast was an interview as opposed to mere
commentary. Close examination of the video belies this
argument. Most conspicuously, there is an orange footer
labeling the entire presentation "Mark's
commentary." (Compl. Ex. B, ECF No. 1-3.) There is also a
white footer stating "Mark: That just cannot
happen." (Id.) Each of the segments in which
Holmberg is questioning or conversing with Morrissey are date
stamped as occurring in 2013 and 2014, while the commentary
at issue was broadcasted on September 2, 2016. Furthermore,
the news anchor introducing the piece said, "[F]or our
Mark Holmberg, electing Morrissey would be a setback for a
city getting attention lately for all the right reasons.
Here's Mark's report and commentary."
(Id. at 28.) Holmberg's broadcast concluded with
the comment, "That's my take. Love to hear yours on
WTVR.com." (Id. at 30.) Holmberg's
broadcast had none of the attributes of an interview, just
his personal opinion.
context of Holmberg's comments is critical to the ensuing
analysis because of the heightened First Amendment protection
afforded the media reporting on public figures vying for
public office. See Chapin v. Knight-Ridder, Inc.,
993 F.2d 1087, 1091-92 (4th Cir. 1993). "[T]he First
Amendment's press and speech clauses greatly restrict the
common law where the defendant is a member of the press, the
plaintiff is a public figure, or the subject matter of the
supposed libel touches on a matter of public concern."
Id. (citing N.Y. Times Co. v. Sullivan, 376
U.S. 254 (1964)). As the U.S. Supreme Court has noted, public
figures voluntarily expose themselves to the "risk of
injury from defamatory falsehood." Gertz v. Robert
Welch, Inc., 418 U.S. 323, 347 (1974).
an accommodation to the First Amendment's protections of
free speech and press, the Supreme Court has held that
'public officials' and 'public figures' must
prove, as part of a defamation case, that the defendant's
allegedly defamatory statement was made with 'actual
malice,' meaning that it was made 'with knowledge
that it was false or with reckless disregard of whether it
was false or not.'" Hatfill v. N.Y.Times
Co., 532 F.3d 312, 317 (4th Cir. 2014) (internal
citations omitted). Reckless disregard requires proof the
speaker "in fact entertained serious doubts as to the
truth of his publication." Gertz, 418 U.S. at
334 n.6 (citing St. Amant v. Thompson, 390 U.S. 727,
731 (1968)); see also Mayfield v. NASCAR, 674 F.3d
369, 377 (4th Cir. 2012).
proof or allegations that the defendant failed to adequately
investigate or check the accuracy of a false statement is
insufficient to support a claim of defamation under this
standard. Gertz, 418 U.S. at 334-37, 342-43. To
prevail, a plaintiff must demonstrate "subjective
awareness of probable falsity" of the publication.
Id. at 334 n.6 (citing St. Amant, 390 U.S.
jurisprudence is well established in the Commonwealth of
Virginia. A viable claim requires proof of publication of an
actionable statement with the requisite sting. Schaecher
v. Bouffault,772 S.E.2d 589 (Va. 2015). "To be
actionable, the statement must be both false and
defamatory." Tharpe v. Saunders, 737 S.E.2d
890, 892 (Va. 2013). CBS 6 contends that Holmberg's
comments are neither. It maintains that even if
Holmberg's commentary is found to be "insulting,
offensive, or otherwise inappropriate," it constitutes
"no more than ...