Edwards v. Schwartz
This text of 378 F. Supp. 3d 468 (Edwards v. Schwartz) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Michael F. Urbanski, Chief United States District Judge
This matter is before the court on a motion to dismiss, ECF No. 13, plaintiff Marc Edwards' Amended Complaint, ECF No. 9, filed by defendants Paul Schwartz, Yanna Lambrinidou, and Melissa Mays (hereinafter, collectively, "defendants"), pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure, for want of personal jurisdiction and failure to *478state a claim upon which relief can be granted, respectively. The defendants have also moved for attorney's fees pursuant to
I.
A.
The controversy giving rise to this case relates to protracted personal, professional, and advocacy-related disputes concerning the water crisis in Flint, Michigan. Marc Edwards, a Virginia Polytechnic Institute and State University ("Virginia Tech") professor involved in exposing the contamination in Flint, Michigan, claims that prior to the events giving rise to this case, he "enjoyed a distinguished reputation in the community at large and an unblemished professional reputation in the fields of education, science, and community advocacy." ECF No. 9, at 2-3. Edwards' causes of action in Counts I-V are predicated upon an allegedly defamatory letter ("Letter") published on May 10, 2018, "as well as numerous subsequent dates," and a multitude of other statements made via "Facebook posts, Twitter tweets, television interview, radio interviews, emails, correspondence, *479and other public fora."
Edwards asserts that the Letter marked the "crescendo" of a concerted and ongoing disparagement campaign conducted by the defendants against him that began in 2016. ECF No. 9, at 4. The Letter accuses Edwards of, among other things, speaking on behalf of Flint residents without their consent, engaging in "[u]nsubstantiated defamation of Flint residents," and obstructing "Flint's right for self-determination." ECF No. 9-1 ; ECF No. 27-1, at 2. In the course of this litigation, Edwards submitted three versions of the Letter for the court's review. Though each version of the Letter is substantively the same, the quantity and identities of the signatories differ. The first version of the Letter was submitted with the Amended Complaint as Exhibit 1, ECF No. 9-1, and featured the signatures of 39 Flint workers, parents, and residents, including Melissa Mays, as well as an Episcopal priest. It is this first version of the Letter that was apparently sent on May 10, 2018 as an email attachment to, among others, Virginia Tech president Timothy Sands, the Union of Concerned Scientists, the National Academy of Sciences, the Association of Environmental and Engineering Science Professors, the American Association for the Advancement of Science, the National Science Foundation, and several individuals within Edwards' professional community or associated with the aforementioned organizations. ECF No. 9, at 6. The content of the email is as follows:
Esteemed President Sands,
Residents of Flint request you tell us where we can file a formal complaint against the behavior, since January 2016, of Professor Marc Edwards of Virginia Tech. We also request that you send representatives to Flint as soon as possible for a meeting with us to hear directly from us about our experiences with Mr. Edwards and our call for an investigation into Mr. Edwards' conduct and the harm his actions have caused.
Attached is our full complaint. Thank you for your time and immediate attention on this matter.
Affected Residents of Flint, Michigan
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Michael F. Urbanski, Chief United States District Judge
This matter is before the court on a motion to dismiss, ECF No. 13, plaintiff Marc Edwards' Amended Complaint, ECF No. 9, filed by defendants Paul Schwartz, Yanna Lambrinidou, and Melissa Mays (hereinafter, collectively, "defendants"), pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure, for want of personal jurisdiction and failure to *478state a claim upon which relief can be granted, respectively. The defendants have also moved for attorney's fees pursuant to
I.
A.
The controversy giving rise to this case relates to protracted personal, professional, and advocacy-related disputes concerning the water crisis in Flint, Michigan. Marc Edwards, a Virginia Polytechnic Institute and State University ("Virginia Tech") professor involved in exposing the contamination in Flint, Michigan, claims that prior to the events giving rise to this case, he "enjoyed a distinguished reputation in the community at large and an unblemished professional reputation in the fields of education, science, and community advocacy." ECF No. 9, at 2-3. Edwards' causes of action in Counts I-V are predicated upon an allegedly defamatory letter ("Letter") published on May 10, 2018, "as well as numerous subsequent dates," and a multitude of other statements made via "Facebook posts, Twitter tweets, television interview, radio interviews, emails, correspondence, *479and other public fora."
Edwards asserts that the Letter marked the "crescendo" of a concerted and ongoing disparagement campaign conducted by the defendants against him that began in 2016. ECF No. 9, at 4. The Letter accuses Edwards of, among other things, speaking on behalf of Flint residents without their consent, engaging in "[u]nsubstantiated defamation of Flint residents," and obstructing "Flint's right for self-determination." ECF No. 9-1 ; ECF No. 27-1, at 2. In the course of this litigation, Edwards submitted three versions of the Letter for the court's review. Though each version of the Letter is substantively the same, the quantity and identities of the signatories differ. The first version of the Letter was submitted with the Amended Complaint as Exhibit 1, ECF No. 9-1, and featured the signatures of 39 Flint workers, parents, and residents, including Melissa Mays, as well as an Episcopal priest. It is this first version of the Letter that was apparently sent on May 10, 2018 as an email attachment to, among others, Virginia Tech president Timothy Sands, the Union of Concerned Scientists, the National Academy of Sciences, the Association of Environmental and Engineering Science Professors, the American Association for the Advancement of Science, the National Science Foundation, and several individuals within Edwards' professional community or associated with the aforementioned organizations. ECF No. 9, at 6. The content of the email is as follows:
Esteemed President Sands,
Residents of Flint request you tell us where we can file a formal complaint against the behavior, since January 2016, of Professor Marc Edwards of Virginia Tech. We also request that you send representatives to Flint as soon as possible for a meeting with us to hear directly from us about our experiences with Mr. Edwards and our call for an investigation into Mr. Edwards' conduct and the harm his actions have caused.
Attached is our full complaint. Thank you for your time and immediate attention on this matter.
Affected Residents of Flint, Michigan
Paragraph 13(a)
Residents of Flint.... Also request that you send representatives to Flint as soon as possible for a meeting with us to hear directly from us about our experiences with Mr. Edwards and our call for an investigation into Mr. Edwards' conduct and the harm his actions have caused.
Paragraph 13(b)
*480This is dishonest, paternalistic and exploitative and, we fear, used by Mr. Edwards to build his own professional and financial power ... Far too many residents are exhausted from Mr. Edwards [sic] bullying ... Mr. Edwards is using our crisis and suffering for entertainment, intrigue, exhibitionism, and personal power that might attract the media and outside readers but are completely inappropriate for the circumstances.
Paragraph 13(c)
Mr. Edwards' portrayal of Flint residents as dumb, dirty and vulnerable to being misled by anyone other than himself started in early 2016, is ongoing, and is misguided and offensive
...
Paragraph 13(d)
Contrary to Mr. Edwards' claims, Flint residents were never told that shigella was in our tap water and, as a whole, never stopped using proper hygiene from fear of the water. The allegation that FACHEP announced that they found shigella in Flint water is a lie. The allegation that WE caused our own shigella outbreak because we stopped bathing out of fear of the water, is also a lie.
Paragraph 13(e)
What scares us is Mr. Edwards who uses his position as a scientist to misrepresent us and silence us.
Paragraph 13(f)
In May 2016, Mr. Edwards erroneously accused Scott Smith and Water Defense of scaring residents out of bathing.... Mr. Edwards also accused Dr. Laura Sullivan and Mr. McElmurry of FACHEP [Flint Area Community Health and Environment Partnership] of causing Flint residents to stop bathing because their research scared us (according to some reports, Mr. Edwards made the preposterous claim that as many as 80% of us returned to a state of filth). This is insulting and false. It is also blatantly unscientific because Mr. Edwards did not bother to ask actual Flint residents about our bathing habits before coming up with this pronouncement.
Paragraph 13(g)
To our knowledge, there is no one in the scientific community overseeing Mr. Edwards' work or the way he uses his power over powerless residents. As far as we know there is no one in the scientific community ensuring the integrity and honesty of Mr. Edwards' words, research and activism. Mr. Edwards has repeatedly spoken and written about how there are no bacteria or dangerous pathogens in Flint residents' water, even though he is not a microbiologist nor is he doing mass testing within our homes.
Paragraph 13(h)
Instead, Mr. Edwards goes around the country giving talks that dismiss our concerns and calls us 'tribal' .... Shockingly, Mr. Edwards has gone as far as to declare that the Flint Water Crisis was over 2 years ago (in 2016).... We need an end to his disruptive presence so that we can finally clean up the mess he has left behind him, focus on healing the rifts he has created between residents, and try to address the real problems plaguing us.
Paragraph 13(i)
We are reaching out to you, key representatives of the scientific and engineering communities who keep awarding and rewarding Mr. Edwards for his behavior, because we need full protection from Mr. Edwards immediately. We also need an immediate investigation that puts OUR voices at the center and *481demands evidence for all claims made by Mr. Edwards. We ask for a committee that includes academics, professionals, and Environmental Justice leaders who have expertise in abuses of professional power against poisoned communities like Flint.
Edwards claims that following the May 10, 2018 publication of the Letter, the defendants, "acting individually and in concert," created a webpage www.flintcomplaints.com and a Facebook page to "host, draw attention to, and facilitate the republishing" of the Letter.
The Letter falsely purported to be written and submitted by "Residents of Flint" and, in its initial version, was signed only by Flint residents. This was false because, on information and belief, Schwartz, Lambrinidou, and perhaps others participated in writing the Letter. According to an article for the East Village, the origins of the Letter were "strategically cloaked a little bit because the idea is to avoid its being associated too closely with any one individual or individuals." An anonymous Facebook page created to disseminate the letter, flintcomplaints.com, stated that the Letter was "crafted for us." According to an article published in the Roanoke Times, counsel for [d]efendants stated he did not know who compiled the Letter and, when asked who operated flintcomplaints.com, stated "that information isn't public." This explicitly false statement that the Letter was entirely the work of Flint residents - without outside input - was intended to, and did in fact, add to the Letter's sting and thereby increase its damaging effect on Edwards professional reputation.
ECF No. 9, at 12 ; ECF No. 27, at 2. Edwards alleges that, "upon information and belief," Schwartz, Mays, and Lambrinidou "collaborated, worked on, shared ideas, encouraged one another, contributed to and generally acted in concert to draft the contents of the Letter." ECF No. 9, at 12. Elsewhere in his pleadings, Edwards similarly avers that the defendants, "both individually and acting as conspirators in concert and together, and as members and representatives of a non-profit organization known as the Campaign for Lead Free Water, participated in drafting, signing, electronically communicating and/or mailing a damaging defamatory and tortious letter and email."
In addition to those statements in the Letter, Edwards originally asserted as defamatory or defamatory per se a dizzying array of statements contained in communications purportedly published by the defendants at various times, to various audiences, via various media, including Facebook and Twitter. It was initially unclear to the court which of these communications (and statements contained therein) Edwards was alleging gave rise to causes of action for defamation, which were being offered as circumstantial evidence of intent, which were included in support of Counts III-V only, and which were presented merely to provide context. Following a hearing on October 29, 2018, the court requested, and Edwards later produced, the Supplemental Memorandum. In this memorandum, Edwards identified six communications and/or instances of alleged defamation besides the Letter. ECF No. 27, at 3-6. These additional communications are contained in paragraphs 52, 53, 54, 55, 56, and 63 of the Amended Complaint. Edwards also attached, as discussed above, the second and third versions of the Letter as exhibits. In this Supplemental Memorandum, Edwards also conceded that statements contained in paragraphs 49-51 of the Amended Complaint do not provide a basis for liability under Count I or Count II because they are time-barred by
Paragraph 52
On September 9, 2017, Mays stated via Twitter, "The person [Edwards] being talked about betrayed my family. He promised he would fight for us and when he was coopted by the State, he abandoned us."
Paragraph 53
In late 2017, Lambrinidou made two keynote presentations that, based on information and belief, included false and harmful statements of and concerning Edwards. Attendees live tweeted that an engineer involved in D.C. and Flint [Edwards] was engaged in "structural bullying" and compared Edwards' conduct to sexual harassment and assault victims in the "#metoo" movement.
Paragraph 54
On February 27, 2018, Mays made the following false and harmful statements of and concerning Edwards during an interview on CAN TV, an online program available now on YouTube:
As for the filters ... also ... Wayne state has been trying to get this study out for a year. The state of Michigan has blocked it ... as well as some other PhDs (I am not bitter). The tap filters grown [sic] bacteria.... Boil the water. We had to find that the hard way because the filters cause Dysentery (shigella)....
From 2014 Hundreds of people in Flint died from pneumonia. Probably undiagnosed legionnaires disease. They are willing to kill people. Why are they killing us off because who will pay the bills? Because they want the land.
Paragraph 55 *483On May 10, Flint residents sent a letter out to the heads of the Scientific and Engineering Communities and Academia asking for an independent committee to come to Flint and hear our stories firsthand of the attacks and intimidation by a certain researcher [Edwards].
[T]he social media, public attacks and intimidation by this researcher [Edwards] have not stopper [sic] and now his students have copied this behavior in a presentation just last week[.]
[Edwards] began another barrage of false accusations to her personally, which is abhorrent behavior for a [p]rofessor[.]
Paragraph 56
Edwards' imperial and colonial version of "saving" us by denying through gaslighting, intimidation, and ridicule the real harm that he inflicts on the ground, and by belittling our knowledge, demands, organizing and mobilization in defense of our health is corrosive, unethical and not about science in any sense of the word.
We are carefully watching you [Dr. Cooper and anyone who supports Edwards].
That Edwards' full-of-untruths story of "heroism" was recently served to AAAS by citizen science ambassador Dr. Caren Cooper of North Carolina State University to get Edwards the prestigious "scientific freedom and responsibility" award, that Cooper has no direct knowledge about Edwards' work in DC and Flint, that after nominating Edwards Cooper was granted a seat on Edwards' $1.9 million EPA project, and that Cooper has known but has expressed not an iota of curiosity about community voices protesting Edwards' community work and the harm that has ensued, are not lost on us.
These statements, published via Facebook by [d]efendant Schwartz ...
Paragraph 63
On June 30, 2018, Melissa Mays published defamatory statements of and concerning Edwards via Facebook and Twitter, associated with a photograph of a water hydrant spewing discolored water that defendants stated had been taken days earlier. After Edwards['] team demonstrated that the viral photo was not taken a few days early, but was actually from 2015 during the height of the water crisis, Mays stated:
Here is yet ANOTHER example of Virginia Tech's Marc Edwards and @flintwaterstudy taking it upon themselves to attack poisoned Flint residents and call them liars.... It's just appalling that professionals 'investigate' and attack residents, not the people who poisoned us.
ECF No. 9, at 18-24.
Edwards contends that the publication (and apparent republication) of the Letter and the statements reproduced above were part of a "defamatory campaign" lasting "nearly two years," during which the defendants "refused to back down ... despite [his] repeated attempts to demonstrate the falsity of their statements."
B.
In support of his contention that the defendants acted with "actual malice" and "common law malice," Edwards cites (1) the defendants' continued publication of statements containing falsehoods despite his efforts to apprise them of their falsity, as well as (2) the defendants' improper motives for continuing to publish said falsehoods despite an awareness of their falsity.
Edwards claims to have made numerous efforts to "dissuade [the defendants] from repeatedly publishing false statements" through "conciliatory emails"4 and text messages5 to the defendants "requesting opportunities to explain the falsity of [their] aspersions."
Taken together, Edwards maintains that these exchanges via email, text message, Facebook, and blog posts indicate that "[d]efendants had knowledge of falsity, or recklessly disregarded the truth, when making defamatory statements[,] including those alleged in paragraph 13."
Furthermore, Edwards claims that the defendants had "various and overlapping motives to damage [him]," including "financial, professional, and social incentives to make negative and damaging statements regarding [him] and his work."
Lambrinidou, for example, purportedly "harbors severe animosity" toward Edwards following, among other things, a romantic falling-out, as well as a professional estrangement related to disagreements over collaborative research projects and a course ("Engineering Ethics and the Public") they co-taught from 2007-2010 at Virginia Tech.
Mays, according to Edwards, possesses a "vested financial interest in generating attention in the Flint Water Crisis."
More generally, Edwards claims that the defendants (1) have made numerous statements expressing resentment or jealously toward the credit and accolades he has received, (2) expressed animosity towards him because they "believe he represents government interests and does not perform objective water testing," and (3) "harbor severe animosity" towards him *486due to "differences regarding community activism" and "other issues surrounding the Flint water crisis."
Mays, Lambrinidou, and Schwartz directed and sent false and harmful statements via social media posts to the W.K. Kellogg Foundation, the Engagement Scholarship Consortium, and the Association of Public and Land Grants [sic] University, that included but were not limited to republication of the defamatory Letter quoted above, and affirmatively discouraged these professional organizations and foundations from awarding Edwards' team at Virginia Tech awards or any other positive recognition. Edwards and his team were finalists for a prestigious award and cash prize, and the [d]efendants purposefully targeted re-publication of the Letter to influence the selection process.
In Count IV and Count V, Edwards alleges that the defendants' "concerted smear campaign" was part of an ongoing civil conspiracy to "attack and damage" his professional reputation and "demonize[ ] [him] and his work to the public at large as well as [to] specific individuals and subsets within Edwards' professional community."
C.
In their motion to dismiss and subsequent filings, the defendants assert a variety of grounds for dismissal. In support of their motion to dismiss for want of personal jurisdiction, the defendants claim that they are not residents of Virginia and that there are insufficient minimum contexts with Virginia to confer either general or specific jurisdiction. ECF No. 13, at 41-42.
*487They further assert that a finding of personal jurisdiction would offend notions of fair play and substantial justice given the "unconscionable burden" and "inconvenience" it would place on Mays and the "compelling state interest Michigan has over the health, safety, and welfare of her denizens."
The defendants further contend that Edwards' lawsuit represents a "cynical attempt" to "strip the residents of Flint of their right to self-determination by replacing their voices with the judgment of Virginians," and "seeks to embroil this [c]ourt in a public policy debate over the history and future of the City of Flint, with the battle lines set between those seeking community empowerment by allowing residents to speak for themselves versus those with a preference for scientific paternalism." ECF No. 13, at 1-2. The defendants also assert that Edwards has failed to plausibly allege that they acted with "actual malice," which is the appropriate standard given Edwards' status as a public figure.
The court will first address the veritable thicket of jurisdictional questions presented by this case, and then proceed to address the defendants' motion to dismiss as to Count I and Count II for defamation per se and defamation, respectively. For reasons stated below, the court will not address Counts III-V.
II.
"When personal jurisdiction is properly challenged under Rule 12(b)(2), the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence." Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc.,
The court employs the traditional two-step analysis to resolve the personal jurisdiction dispute at issue. Therefore, the court must first decide whether Virginia's long-arm statute,
"The standard for determining the existence of personal jurisdiction over a nonresident defendant varies, depending on whether the defendant's contacts with the forum state also provide the basis for the suit." Carefirst,
To determine whether specific jurisdiction exists, the Fourth Circuit has adopted a three-part test. The court must consider: "(1) whether the defendant purposefully availed [herself] of the privileges of conducting activities in the forum state, (2) whether the plaintiff's claim arises out of the defendant's forum-related activities, and (3) whether the exercise of personal jurisdiction over the defendant would be constitutionally reasonable." Young,
In Count I and Count II, Edwards "incorporate[d] by reference ... all of the allegations appearing elsewhere in this [c]omplaint." ECF No. 9, at 32-33. In its review of the pleadings, the court struggled to determine with any precision which of Edwards' sundry "allegations" were intended to support which claims for relief. Moreover, it was evident that although asserting one count of defamation per se (Count I) and one count of defamation (Count II), subsumed within these counts were statements contained in the Letter sent via email to Virginia Tech on May 10, 2018,8 and numerous other statements arising out of, among other things, the defendants' social media activity. Edwards' incorporation-by-reference approach placed the onus of sorting allegations scattered throughout his pleadings on the court. The resulting confusion between the parties and the court required the latter to order Edwards to submit a supplemental brief specifying which statements, besides those contained in the Letter, he was alleging constituted actionable defamation. Edwards' Supplemental Memorandum directed the court's attention to six communications: (1) Mays' September 9, 2017 Twitter post alleged in paragraph 52, (2) Lambrinidou's late 2017 "keynote presentations" alleged in paragraph 53, (3) Mays' February 27, 2018 interview on CAN TV, "an online program available now on YouTube," alleged in paragraph 54, (4) a Facebook post ostensibly published by all three defendants on a Facebook page titled Flint Complaints, alleged in paragraph 55,9 (5) a Facebook post purportedly published by Schwartz on May 22, 2018, alleged in paragraph 56, and a (6) June 30, 2018 Twitter post by Mays alleged in paragraph 63. Edwards contends generally that the court has jurisdiction over these communications.
The Internet presents unique challenges to establishing personal jurisdiction over nonresident defendants. It has *490been long held that the purposeful availment prong of the personal jurisdiction analysis can be met if a defendant's "intentional conduct [in the foreign state was] calculated to cause injury to [the plaintiff] in [the forum state]." Calder v. Jones,
In the Internet context, the Fourth Circuit, "adopting and adapting" a three-part test posited in Zippo Manuf. Co. v. Zippo Dot Com, Inc.,
The Fourth Circuit provided relevant guidance on the application of this standard in Young.
[T]hat the district court has specific personal jurisdiction over the newspaper defendants ... because of the following contacts between them and Virginia: (1) the newspapers, knowing that Young was a Virginia resident, intentionally discussed and defamed him in their articles, (2) the newspapers posted the articles on their websites, which were accessible in Virginia, and (3) the primary effects of the defamatory statements on Young's reputation were felt in Virginia.
Here, Edwards asserts only specific personal jurisdiction over the defendants, and therefore the court must have jurisdiction over each claim that it decides. See Gatekeeper Inc. v. Stratech Sys., Ltd.,
*491("[T]hough the Fourth Circuit has yet to address this issue, the three courts of appeal that have done so have sensibly concluded that specific jurisdiction requires a claim-specific analysis."); see also Seiferth v. Helicopteros Atuneros, Inc.,
Importantly, and as explained above, the court cannot, having determined that personal jurisdiction exists over a defendant with respect to one claim, use that claim to exert personal jurisdiction over the same defendant with respect to other claims that do not otherwise support such jurisdiction. See Helicopteros,
Edwards cannot satisfy the Calder "effects" test, as elucidated in Young, to establish this court's jurisdiction over his claims that arise out of the defendants' social media activity (paragraphs 52, 55, 56, 63), Lambrinidou's late 2017 keynote presentations and related "live tweet[s]" made by an unnamed third party (paragraph 53),10 or Mays' February 27, 2018 interview on CAN TV, apparently available on YouTube (paragraph 54). Though alleging numerous instances of defamation arising out of communications on various media, Edwards does not separate these claims and/or causes of action into separate counts. Nor does he apparently regard any of the six additional communications identified above as separate claims for the purposes of establishing personal jurisdiction. That these six additional claims were pled collectively and presented under two umbrella counts, however, belies the fact that each constitutes a discrete cause of action arising under distinct circumstances for which a separate jurisdictional analysis is required. In other words, Edwards' pleading numerous instances of defamation under two counts does not relieve him of establishing, nor the court of evaluating, jurisdiction on a claim-by-claim basis. Indeed, "it is well-settled that 'repeated defamations do not constitute a [single] continuing tort,' " but *492rather, "as courts have uniformly recognized, each separate defamatory statement itself constitutes a separate and distinct cause of action." Katz v. Odin, Feldman & Pittleman, P.C.,
The relevant legal principle requiring this court to individually assess defamatory communications of the kind alleged in this case is illustrated in McNeil v. Biaggi Productions, LLC, where the plaintiff appeared to allege that because the defendants "deliberately communicated via telephone and email with a third party located in Virginia" (Count 5), the court was permitted to exercise jurisdiction over other allegedly defamatory statements disseminated via Facebook, Twitter, and a blog (Counts 1-4 & 6-11) concerning the same or similar subject matter as the "telephone [call] and email." No. 3:15CV751,
*493B.
Edwards asserts that statements contained in the six communications identified in the Supplemental Memorandum (1) "caused tortious injury ... in the Commonwealth of Virginia, and, seemingly as an afterthought, that defendants (2) transmitted these communications "directly to Virginia Tech via social media." ECF No. 9, at 2 ; see also ECF No. 29, at 29 (same). No additional factual matter is proffered in support of the second generalized assertion, and although the court must construe the pleadings, affidavits, and other supporting documents in the light most favorable to Edwards, it need not "credit conclusory allegations or draw farfetched inferences." Masselli & Lane, PC v. Miller & Schuh, PA,
In FireClean, LLC v. Tuohy, for example, the district court dismissed a defamation case for lack of personal jurisdiction where the underlying claims arose from articles posted on a firearms blog and various social media websites, including Facebook. No. 1:16-CV-0294,
The court applied the Fourth Circuit's analysis in Young, ultimately dismissing the case after concluding that it lacked personal jurisdiction over the defendants. The court rejected FireClean's argument that jurisdiction exists in the state where the plaintiff experienced reputational harm, despite the fact that: (1) Tuohy exchanged non-defamatory "emails, text messages, Facebook messages, and occasionally phone calls" with the company (in Virginia), (2) FireClean had sent Tuohy samples of its lubricant from Virginia, (3) 90 of the 9,181 people who "liked" Tuohy's allegedly defamatory Facebook posts were located in Virginia, and (4) some Virginia servers may have processed Tuohy's online content. Id. at *5. The court underscored that these contacts neither form the basis of the plaintiff's defamation claim, nor do they evince purposeful targeting of Virginia. Id. at *5-7. In relation to the Facebook "likes" specifically, the court held that such "contacts" "appear[ed] completely *494'random, fortuitous, or attenuated.' " Id. at *6 (citation omitted); see Binion v. O'Neal,
Here, as in FireClean, Edwards has not made a prima facie showing that any of the communications alleged in paragraphs 52, 53, 54, 55, 56, and 63 specifically or purposefully targeted a particular forum, let alone Virginia. There is no factual matter in Edwards' pleadings suggesting that the authors of these communications took affirmative steps to direct these communications into Virginia or had any intent to target or focus on Virginia readers or otherwise avail themselves of the benefits and protections of the laws of Virginia. Nor are there any facts indicating that a Virginia resident, or anyone at Virginia Tech, read, "liked," reposted, or was even aware of the communications in question. Indeed, Edwards failed to present any evidence that any Virginia resident, for example, subscribed to, "friended," "retweeted," or "followed" any of the defendants' social media accounts or commented upon the posts in question, or that the accounts themselves had a geographic focus. Lastly, there are no facts suggesting that any of the communications were published from Virginia, routed through servers located in Virginia, or were of special interest to Virginia readers. While it may be the case that Edwards' reputation, professional or otherwise, was damaged in Virginia, as discussed above, the "Fourth Circuit ha[s] brushed back attempts to vest jurisdiction in a [s]tate based entirely or predominantly on the locus of the plaintiff's injury." Id. at *7.
The court, on this record, cannot determine with any certainty the nature of defendants' contacts with Virginia vis-à-vis the claims identified in the Supplemental Memorandum.11 Furthermore, that the allegedly defamatory post in paragraph 63 mentions Virginia Tech by name is insufficient to confer specific jurisdiction over Mays as to that claim. The McNeil court reached a similar conclusion:
While the [d]efendants featured McNeil as the subject of these posts and even referenced Virginia in some of them, nothing indicates that the [d]efendants specifically directed the posts at Virginia or to Virginia social media users. Without more, the [c]ourt cannot find purposeful availment on those eleven claims. See FireClean, LLC v. Tuohy, No. 1:16cv0294,2016 WL 3952093 , at *7 (E.D. Va. July 21, 2016) ("The mere fact that Tuohy referenced a Virginia company, its product, and its owners without mentioning Virginia does not demonstrate an intent to target Virginia, as even overt references to a [s]tate may be jurisdictionally insufficient if the focus of the article is elsewhere.").
In sum, although Edwards alleges that the defendants "directed numerous defamatory statements ... directly to Virginia *495Tech via social media," there is no support, by affidavit or exhibit, indicative of incidental, let alone purposeful, targeting of Virginia Tech (or Virginia) as to the claims in paragraphs 52, 53, 54, 55, 56, and 63.12 Neither the statements themselves nor the social media platforms from which they were published uniquely target Virginia or would have inherently included a substantial number of Virginia residents or businesses. With respect to the two keynote presentations referenced in paragraph 53, Edwards does not indicate where Lambrindiou made these presentations, and the publication by a third-party attendee of whatever defamatory statements were ostensibly made during those presentations, as previously discussed, is insufficient to confer jurisdiction. See Headstrong Corp. v. Jha, No. CIVA 305CV813-HEH,
Notwithstanding the dismissal of the claims above, the court will exercise specific jurisdiction over Mays as to the communication (and statements contained therein) "at the heart of this case," namely the Letter sent via email to Timothy Sands, the president of Virginia Tech. ECF No. 21, at 4. Here, Edwards' averments satisfy the three-part test articulated by the Fourth Circuit allowing the exercise of jurisdiction in the Internet context. With respect to the first prong-direction of electronic activity in the forum-Edwards avers that the "defendants each, both individually and acting as conspirators in concert and together, and as members and representatives of a non-profit organization known as the Campaign for Lead Free Water, participated in drafting, signing, electronically communicating and/or mailing" the Letter to Edwards' employer, Virginia Tech. ECF No. 9, at 2. More specifically, Edwards claims that the Letter was sent to the president of Virginia Tech, Timothy Sands, (1) via email to president@vt.edu, and (2) via Twitter in a tweet to the "handle" @VTSandsman. Id. at 5. With respect to the second prong, Edwards'
*496pleadings also adequately show that the email and accompanying Letter, on their face, evince a manifest intent to target Virginia Tech. Lastly, Edwards has adequately alleged that the Letter "creates ... a potential cause of action [for defamation] cognizable" in Virginia. Id.
It is well established that transmission into the forum state of a communication can constitute purposeful availment if the content of that communication directly gives rise to an intentional tort cause of action. Here, the defamation claim arising from the Letter sent to the president of Virginia Tech, like the telephone call and email alleged in Count 5 in McNeil, manifests an intent to engage in interactions within Virginia. The Letter was clearly directed and "expressly aim[ed]" at a Virginia resident with the intent to effectuate an outcome in Virginia which, according to Edwards, was to "attack and damage [his] professional reputation" and "discredit [his] work in his professional capacity as an employee of a University owned by the Commonwealth [of Virginia]." ECF No. 21, at 29. Where an allegedly defamatory communication has been sent to particular recipient, courts have been willing to exercise specific jurisdiction. Indeed, cases involving analogues to emails, such as faxes, phone calls, and letters made or sent by out-of-state defendants to forum residents are routinely held to support specific jurisdiction when they directly give rise to the cause of action. See, e.g., Neal v. Janssen,
While case law involving defamation-by-email is less plentiful, several district courts have exercised specific jurisdiction over out-of-state emailers. See, e.g., Aitken v. Commc'ns Workers of Am.,
In their motion to dismiss for want of personal jurisdiction, defendants argue that their alleged actions were "not predicated upon [Edwards'] work, acts or relationship with [Virginia] nor did they seek to effectuate an outcome in Virginia." ECF No. 13, at 40. Instead, the defendants contend that the Letter focused on Edwards' acts or omissions in Michigan, "in his capacity as a de facto agent of the state of Michigan and the federal government." Id. at 5, 40. Further, they claim that the only jurisdictionally salient acts are the "transmission of one or two tweets or emails from outside [Virginia]" that went to dozens of individuals and organizations within the scientific and engineering communities writ large, of which Virginia Tech is only one institution out of many. Id. In short, the defendants assert that there was no purposeful availment, and that any tortious injury in Virginia was, at most, incidental.
The record, however, indicates that the sender(s) of the email (and Letter) specifically contemplated an "effect" in Virginia.
*497The email containing the Letter was specifically addressed to the president of Virginia Tech, and requested that "you," (president of Virginia Tech), (1) "send representatives to Flint as soon as possible for a meeting ... to hear directly from us about our experiences with Mr. Edwards," and (2) conduct an investigation into Edwards' conduct and "the harm his actions have caused." ECF No. 9-1. Thus, while it may have been the intention of the sender(s) to affect Edwards' conduct primarily as it relates to Flint, Michigan, there was clearly an intent to also affect Edwards at Virginia Tech. Indeed, the Letter, which paints a highly unflattering picture of Edwards, closes with the following statement: "We are reaching out to you, key representatives of the scientific and engineering communities who keep awarding and rewarding Mr. Edwards for his behavior, because we need full protection from Mr. Edwards immediately. We also need an immediate investigation...." Id. These statements clearly contemplate that some action be taken in Virginia by Virginia Tech to address Edwards' alleged misbehavior.
The argument that "one or two tweets or emails" is insufficient to establish purposeful availment is, as discussed above, without merit. In their own motion, the defendants concede that the "touchstone of this [jurisdictional] analysis is the quality, as opposed to quantity, of the contacts with the forum," such that "even a single contact may be sufficient" to satisfy minimum contacts. ECF No. 13, at 39 (citing Carefirst,
Having established that whomever sent the Letter via email to the president of Virginia Tech did so purposefully, i.e., with the manifest intent that some action be taken in Virginia, and that said transmission creates a potential cause of action cognizable in Virginia, the question then becomes whether Edwards has adequately connected each of the defendants to the transmission in question. In connection with Mays, Edwards specifically alleges that "[p]ublicly available metadata from the Microsoft W[ord] document of the defamatory Letter ... indicates the Letter was saved on and distributed from ... Melissa Mays' computer (the Letter may have also been saved on and distributed from other defendants' computers)." Id. at 23. Edwards also avers that Mays "first created and employed [the] 'dumb and dirty' catchphrase [redolent of language found in the Letter] when she attacked Edwards in [a] New York Times Magazine article" published in 2016. Id. at 25. Lastly, Edwards' Exhibit 1 indicates that Mays was a signatory to the Letter. While it is true, of course, that metadata suggesting the Letter was saved on Mays' computer does not prove definitively that it was also distributed from her computer, the allegations circumstantially connecting to her to its transmission, construed in the light most favorable to Edwards, suffice, if only just barely, to support the court's finding *498that Edwards has carried his burden as to Mays.
Edwards' allegations connecting Schwartz and Lambrinidou to the transmission of the Letter, however, are, as one court put it, "gossamer thin and reed slender." Clark v. Milam,
D.
Finally, "even assuming the requisite minimum contacts between [Virginia] and [Mays], notions of fair play and substantial justice [must not] counsel against jurisdiction." Foster v. Arletty Sarl,
*499Mindful of these considerations, the court finds its exercise of jurisdiction as to Mays would comport with "fair play and substantial justice," i.e., it is constitutionally reasonable. Int'l Shoe,
III.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint; it does not generally resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses. Republican Party of N.C. v. Martin,
A complaint establishes facial plausibility "once the factual content of a complaint allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Nemet Chevrolet, Ltd. v. Consumeraffairs.com. Inc.,
The importance of "evaluat[ing] complaints early in the process" in response to Rule 12(b)(6) motions has been emphasized by the United States Supreme Court and the Fourth Circuit as a way to deal with "the recognized problems created by 'strike suits' and the high costs of frivolous litigation." Arthur v. Offit, No. CIV.A. 01:09-CV-1398,
The court must first determine what documents it may consider before turning to the merits of the motion to dismiss. In evaluating the sufficiency of a complaint in connection with a motion to dismiss, a court ordinarily "may not consider any documents that are outside of the complaint, or not expressly incorporated therein...." Clatterbuck v. City of Charlottesville,
*501Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC,
The rationale underlying this exception is that the primary problem raised by looking to documents outside the complaint-lack of notice to the plaintiff-is dissipated "[w]here plaintiff has actual notice ... and has relied upon these documents in framing the complaint." What the rule seeks to prevent is the situation in which a plaintiff is able to maintain a claim of fraud by extracting an isolated statement from a document and placing it in the complaint, even though if the statement were examined in the full context of the document, it would be clear that the statement was not fraudulent.
Am. Chiropractic Ass'n v. Trigon Healthcare, Inc.,
The only exhibits attached by Edwards are the three versions of the Letter described above. The defendants, on the other hand, attached numerous documents (Exhibits 1-7) that were referred to, albeit oftentimes only obliquely or cursorily, in Edwards' pleadings.15 The defendants also urge the court to take judicial notice of numerous extrinsic documents, including a variety of online newspaper articles about the Flint water crisis, law review articles, and other miscellaneous literature. Edwards concedes that "in certain circumstances the [c]ourt may take judicial notice or rely on documents referred to in a complaint when deciding a motion to dismiss." ECF No. 21, at 25-26. However, Edwards argues that the materials proffered by the defendants, and the defendants' factual arguments that certain allegedly defamatory statements are substantially true, are untimely and must be raised at trial or summary judgment. Id. at 2.
Except for Exhibit 2, the court finds either that it need not or it would be inappropriate to consider the aforementioned exhibits and materials at the motion to dismiss stage. See Goines,
Notably, and as preliminary matter, Edwards does not challenge the veracity or authenticity of any the material submitted by the defendants; rather, he "contests [d]efendants' interpretation, spin, selective quotations, and arguments made in reference to these documents," and "adamantly disagrees with the factual import [they] assign to these documents." ECF No. 21, at 2, 26. Edwards does not submit that the transcript itself, active hyperlinks to which are featured in multiple versions of the Letter submitted in his pleadings, misquoted or otherwise inaccurately characterized his remarks. The transcript appears to be a verbatim record of Edwards' statements during a presentation at Swarthmore College.16 In any event, Edwards himself explicitly references and relies on the transcript in support of his general claim that the defendants "themselves provided links to documents (including audio recordings and transcripts) that were inconsistent with their defamatory statements." Id. at 4. More specifically, Edwards' relies on the contents of Exhibit 2 to buttress his claim of actual malice (and falsity) vis-à-vis allegedly defamatory statements contained in paragraph 13(h), stating, "[t]he word 'tribal' never appears in the transcript of [his] presentation that is referred to in the Letter...." ECF No. 9, at 27. Edwards also explicitly appeals to "the context of the entire Letter and the circumstances of [its] publication" in support of the claim that paragraph 13(h) would be understood by an "objective reader" to imply he is "racist, bigoted, and/or prejudiced against minorities and/or poor individuals." Id. at 11. In urging the court consider paragraph 13(h) in "the context of the entire Letter," Edwards naturally invites consideration of the transcript, which is part of that context. See Adelson v. Harris,
This court has diversity jurisdiction over this suit pursuant to
*503See Lapkoff v. Wilks,
Edwards has not specifically alleged where the May 10, 2018 email was opened and read. In Velocity Micro, Inc. v. J.A.Z. Mktg., Inc., No. 3:11-CV-473,
Here, because Virginia is where Virginia Tech maintains its principal place of business, and because the email containing the Letter was sent to a Virginia Tech administrator, it is, applying the reasoning from Velocity, "probable" that publication occurred in Virginia. Further, as in Velocity, the parties have not pled for the adoption of another state's defamation laws. Therefore, this court applies the relevant Virginia law governing defamation.17 The court's analysis must also include considerations of federal law, because, as will be discussed below, the requirement that an allegedly defamatory statement be of fact, rather than opinion, flows from the First Amendment. See Snyder v. Phelps,
To state a claim for defamation under Virginia law, a plaintiff must allege: (1) publication of (2) an actionable statement with (3) the requisite intent. Schaecher v. Bouffault,
The first element-whether there was a publication-is not seriously in dispute. The second and third elements, however, are disputed. The second element of a defamation claim in Virginia requires an "actionable statement." Chapin v. Knight-Ridder, Inc.,
Virginia law also recognizes defamation per quod, i.e., defamation by implication. See, e.g., Pendleton v. Newsome,
While it is well-established that expressions of opinion are generally protected, determining whether a given statement is opinion or fact "presents oftentimes nettlesome problems ... as the evanescent distinction may be hazy at times." Carto v. Buckley,
*505
The third element of defamation is intent. The requisite level of intent associated with a defamation action varies depending upon the plaintiff's status as a "public figure," a "private figure," or a "limited-purpose public figure." Spencer v. Am. Int'l Grp., Inc., No. CIV. 3:08CV00591,
Limited-purpose public figures are those who "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch, Inc.,
Whether a plaintiff is a limited-purpose public figure depends upon "the nature and extent of [the] individual's participation in the particular controversy giving rise to the defamation." Gertz,
Though Edwards refused to stipulate during the October 29, 2018 hearing that he qualifies, at the very least, as a limited-purpose public figure, the court easily concludes that this status is appropriate, and that his claims should be scrutinized according to the New York Times "actual malice" standard. It can hardly be debated that the allegedly defamatory statements giving rise to this matter are related to an existing public controversy - that is, "a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way." Foretich,
In 2004, Time Magazine recognized Edwards as among the four most important innovators in water around the world. Id. at 3. In 2016, Edwards was recognized: (1) again by Time Magazine as among the 100 most influential people in the world, (2) by Fortune Magazine as among the world's 50 greatest leaders, etc. Id. Edwards also received a White House presidential faculty fellowship in 1996 and other prestigious awards for his work in Flint and beyond. Id. Indeed, in 2016, Edwards claims that he was even "short-listed among Flint whisdeblowers as Time [Magazine's ] person(s) of the year." Id. That same year, New York Times Magazine published a lengthy profile of Edwards. Id. at 17. Edwards *507was also the subject of numerous other newspaper articles and testified in several high-profile congressional hearings and criminal cases in Michigan related to the Flint water crisis. Id. at 25. It cannot be said, given Edwards' public visibility, that his conduct did not inevitably invite public comment and attention.
Indeed, Edwards clearly "thrust[ ] ... his personality into the 'vortex' of [this] important public controversy." Curtis Publ'g. Co. v. Butts,
IV.
Under Virginia and federal law, Edwards has failed to state a claim for defamation upon which relief can be granted as to Count I and Count II. The court thoroughly reviewed the Letter as a whole and each of the allegedly defamatory statements in paragraphs 13(a) - 13(i) in the context in which they were made, as well as all of the parties' arguments. Many of the statements alleged in paragraph 13 plainly qualify as constitutionally protected opinion under Milkovich and its progeny because they are incapable of being proven true or false by a core objective evidence or are so tightly wrapped in loose, figurative, or hyperbolic language that they cannot be reasonably interpreted as stating or implying actual facts. Those few statements appearing to assert verifiable facts either lack the requisite defamatory sting, or are of such a character that a reasonable reader would recognize them as expressing only the speakers' subjective views on contested and emotionally-fraught matters of public concern. In assessing paragraphs 13(a) - 13(i), it is the task of the court not only to determine whether a statement is capable of a defamatory meaning, but also to "examine ... the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment ... protect." N.Y. Times,
Though the Supreme Court held in Milkovich that there is no "separate *508constitutional privilege for 'opinion,' " as discussed above, a statement is constitutionally protected if it "does not contain a provably false factual connotation."
The Fourth Circuit makes clear that to appropriately construe a statement in light of what might reasonably have been understood therefrom, it is incumbent upon courts to look not just at the allegedly defamatory words themselves, but also at the context and general tenor of its message. See Snyder,
With respect to the fourth factor-the broader social context into which the statements alleged in paragraphs 13(a) - 13(i) fit-Edwards concedes that the tortious conduct that is the gravamen of this litigation "occurred in the context of an ongoing public debate regarding the well-known water and public health crisis in Flint, Michigan," noting that the defendants "harbor severe animosity toward [him] due to differences arising from their involvement in the Flint water crisis." ECF 21, at 1, 11. Edwards asserts, however, that the presence of a public debate does not provide license to intentionally publish falsehoods injurious to his reputation. The court agrees on both points. It is self-evident that the disagreements between the parties, recapitulated in Letter, are inextricably intertwined with the highly publicized health crisis in Flint, Michigan. The extent of the contamination of Flint's municipal water supply, once revealed, drew national media coverage and generated an emotionally supercharged public discourse, of which the Letter and many of the social media posts by and between the parties may properly be considered a part. In January 2016, both the state of Michigan and the federal government declared states of emergency in Flint, Michigan, and the crisis led to numerous congressional hearings, partisan finger-pointing, and substantial litigation.23 See In re Flint Water Cases,
Edwards is also correct that notwithstanding a commitment to "uninhibited, robust, and wide-open" debate on public issues, which may include "vehement, caustic, and sometimes sharp attacks," N.Y. Times Co.,
The parties each appear to operate or contribute to blogs and various social media accounts to advance their respective positions vis-à-vis the Flint water crisis and debate other advocacy-related issues. These same online media are also apparently being used by the parties to critique, ridicule, cast aspersions upon, and question each other's motives and/or intentions. In a series of emails and Facebooks posts to varied (or unspecified audiences), the defendants accuse Edwards of, among other things, (1) "being co-opted by the [s]tate," (2) promulgating an "imperial and colonial version of 'saving' us" by "belittling our knowledge, demands, organizing and mobilization in defense of our health," (3) engaging in conduct that "silences and erases the people who are suffering from the multiple contaminants," (4) " 'pimp[ing]' the disaster for personal and professional gain while ... compound[ing] our suffering by trotting us out when it is convenient" and fits Edwards' " 'hero' and 'rescue' story line," and (5) "arrogat[ing] power and credit for [himself] and [his] chosen band that rightly belonged to the people." Id. at 18-22. In response to these and other statements, Edwards and a student apparently published blog posts wherein they attempted to counter some of the accusations levelled against. Indeed, there appears to have been an extensive and acrimonious back-and-forth between the parties via email, text message, Facebook, Twitter, and other social media spanning several years. These exchanges and the statements above reflect a discourse devolved in mudslinging of the sort that is, regrettably, commonplace today.
Edwards' pleadings reveal that the extreme distrust between the parties spilled into the public sphere. In 2017, for example, Edwards states that New York Times Magazine published a profile article about him, in which defendants all made "negative and harmful statements regarding [him] to a reporter that were included in the article." Id. at 17. The publication of the Letter, and presumably its contents, was also covered in an article published by East Village Magazine. Id. at 12. Further, the Letter itself contains hyperlinks to online newspaper articles and posts from detroitnews.com, michiganradio.org, and theguardian.com, with headlines such as, "Edwards: Flint witness falsified research claims," "Scientific disagreements could affect special prosecutor's case in Flint water crisis," and "Flint lead tainted water ... safe to use," respectively. Id. at 9-1, at 2. Insofar as the controversy surrounding the Flint water crisis and the disputes between the parties over advocacy-related matters were known to the public, this backdrop is probative as to how a reasonable reader of the Letter, fully aware of *511the biases and confrontational posture of the parties in relation to one another, would react to and interpret the statements contained in paragraphs 13(a) - 13(i). See Ollman,
With respect to the third Ollman factor-the context of the challenged statements within the writing as a whole-the Letter is replete with emotional and polemical language, rhetorical hyperbole, and unmistakable indicia of partisanship. Indeed, there is absolutely no pretense of objectivity or disinterestedness. The email in which the Letter was attached begins by requesting those to whom it is addressed "tell us where we can file a formal complaint against the behavior, since January 2016," of Marc Edwards, and states that the attached Letter is "our full complaint" expressing some of the signatories' "concerns." ECF No. 9-1, at 1. The Letter is organized around four points numbered accordingly: (1) "Violation of principle # 3 of the Jemez principles for democratic organizing," (2) "Obstruction of Flint's right for self-determination," (3) "Unsubstantiated defamation of Flint residents," and (4) "To our knowledge, there is no one in the scientific community overseeing Mr. Edwards' work or the way he uses his power over powerless residents." Id. at 1-4.
Under the first point, the authors express their frustration with Edwards about a formal complaint he allegedly filed against a Wayne State University professor. The authors claim that the complaint "does nothing to help the residents of Flint move toward recovery," "has caused more strife, stress and drama that we do not need, want or deserve," and was presented by Edwards as the grievances of Flint residents "without speaking to us first or securing our permission to take this action on our behalf." Id. at 1. The authors sarcastically state that the formal complaint filed against this professor, Shawn McElmurry, should have been titled "Marc Edwards v. Whomever He Chooses," and reaffirm that "Flint residents have their own voice and never asked [Edwards] to speak for us...." Id. They then state that Edwards' claims of representing Flint residents is "hollow," and "[t]hose who haven't figured this out yet should ask themselves why it is that Mr. Edwards' only evidence of working with 'the residents' is a tired show of the same group of 2-3 individuals who are embedded with Mr. Edwards and loyal to him." Id.
Under the second point, the authors state, among other things, that the "[r]esidents of Flint object to Mr. Edwards fighting his own petty and vicious fights against anyone and everyone he sees as a challenger or competitor ... all under the guise of 'protecting' and 'saving' us, or 'defending' science." Id. at 2. They further claim that many residents of Flint are "exhausted" with Edwards' "Hollywood antics - this is not Entertainment Tonight," and are fearful that Edwards' "glib, reckless, and egotistical conduct may hamper the ongoing criminal investigation into the Legionnaires deaths in our city, which we see as the only form of justice we might achieve." Id. Edwards' conduct, the authors claim, creates "additional and totally undeserved worry [that] suddenly adds to the stress and chaos we already feel." Id.
Under the third point, the authors take umbrage with several of Edwards' purported statements concerning bathing habits in Flint and express their disapproval of accusations Edwards allegedly leveled against those they consider allies to their cause in Flint and who provided Flint residents *512with certain information about bacteria growth on filters. Id. The authors further criticize Edwards' alleged portrayal of them, stating that "we WANT science that addresses our questions, experiences, and needs," and that "[w]hat scares us is Mr. Edwards who uses his position as a scientist to misrepresent us and silence us." Id. 2-3.
Finally, under the fourth point, the authors, among other things, call on Edwards to focus "on our LIVES, our first-hand EXPERIENCES, our NEEDS, and on the fact that we are still suffering." Id. The Letter closes by requesting that "you, key representatives of the scientific and engineering communities," provide "full protection from Mr. Edwards immediately," an "immediate investigation" that puts their "voices at the center," and "a committee that that includes academics, professionals, and Environmental Justice leaders who have expertise in abuses of professional power against poisoned communities like Flint." Id. at 4.
Lastly, there is a definite and palpable current of exasperation throughout the Letter, as evidenced by use of capitalization to underscore words such as NEEDS, LIVES, EXPERIENCES, and statements such as (1) "WE are the ones who have always led and continue to lead the activism on the ground ... Mr. Edwards' work wouldn't be possible without US," and (2) "Mr. Edwards' choice to initiate drama distracts from the real suffering in Flint and needs to stop NOW." ECF No. 9-1, at 1-4. The emphasis on the first-person tense ("we," "us," "our") and exaggerated rhetoric (e.g., "this is not Entertainment Tonight," "Mr. Edwards v. Whomever He Chooses") put the reader on notice the Letter is an "inherently subjective enterprise." Ollman,
The analysis, however, does not end there, for while signaling to readers to expect opinion, context alone does not render all statements automatically non-actionable. It is possible that a particular statement may imply an assertion of objective fact and thus constitute actionable defamation. The court will, as it must, proceed by assessing the allegedly defamatory statements contained in paragraphs 13(a) - 13(i) individually. The court will pay close attention, per the first and second Ollman factors, to whether the authors' choice of words supports or negates any impression that a challenged statement asserts or implies defamatory facts and to the question of verifiability. The latter requirement is especially important, as the Fourth Circuit has recognized that Milkovich placed "primary emphasis ... on verifiability of the statement." Chapin, 993 F.2d at 1093 (citation omitted). In Ollman, the court explained the significance of verifiability:
The reason for this inquiry is simple: a reader cannot rationally view an unverifiable statement as conveying actual facts. Lacking a clear method of verification with which to evaluate a statement ... the trier of fact may improperly tend to render a decision based upon approval or disapproval of the contents of the statement, its author, or its subject. [The] ... obvious potential for quashing or muting First Amendment activity looms large when juries attempt *513to assess the truth of a statement that admits of no method of verification.
(1) Paragraphs 13(a) and 13(i)
Paragraph 13(a)
Residents of Flint.... Also request that you send representatives to Flint as soon as possible for a meeting with us to hear directly from us about our experiences with Mr. Edwards and our call for an investigation into Mr. Edwards' conduct and the harm his actions have caused.
Paragraph 13(i)
We are reaching out to you, key representatives of the scientific and engineering communities who keep awarding and rewarding Mr. Edwards for his behavior, because we need full protection from Mr. Edwards immediately. We also need an immediate investigation that puts OUR voices at the center and demands evidence for all claims made by Mr. Edwards. We ask for a committee that includes academics, professionals, and Environmental Justice leaders who have expertise in abuses of professional power against poisoned communities like Flint.
Edwards complains that the above paragraphs, which bookend the body of the Letter and both call for investigations, contain factual statements and/or implications, inferences, or insinuations that, inter alia, Edwards is guilty of professional misconduct or other wrongful activity that warrants an investigation into his behavior, and that his professional misconduct has caused and is causing ongoing harm to the residents of Flint, Michigan, and other individuals who need "full protection" from Edwards' "abuses of professional power." ECF No. 9, at 8, 11. He further avers that these statements falsely state or imply that he lacks integrity and is unfit to perform his professional duties when, in fact, he is "not guilty of such misconduct and has not caused harm to the residents of Flint."
Whether the signatories' feel that they "need full protection" from Edwards is plainly a question and/or expression of opinion. Edwards is, of course, as entitled to his opinion that "no individuals need protection from him" as the authors and/or signatories are to their contrary opinion regarding the same. Further, merely calling for an "investigation," i.e., an inquiry, in the context of an ongoing public controversy, does not, in and of itself, imply a defamatory fact. It "simply provokes public scrutiny of the plaintiff's activities," and "voluntary public figures [like Edwards] must tolerate such examination." See Chapin,
Edwards' decision to voluntarily "thrust himself into the vortex" of an important and emotionally-fraught public controversy, to engage in advocacy-related work affecting and/or touching on the welfare of Flint residents, and to immerse himself in spirited online exchanges, invited intense scrutiny of his conduct. Gertz, 418 U.S. at 345,
Furthermore, considering the calls for an "investigation" in their specific context would reinforce in the mind of a reasonable reader that whatever misbehavior is implied by these requests is of a highly subjective character. Immediately preceding the call for an investigation in paragraph 13(a), for example, the signatories "request that you send representatives to Flint as soon as possible for a meeting with us to hear directly from us about our experiences with Mr. Edwards." ECF No. 9-1, at 1. Likewise, in paragraph 13(i), the authors state that "we need an immediate investigation that puts OUR voices at the center and demands evidence for all claims made by Mr. Edwards." Id. at 3. In this context, a reasonable reader would understand that these calls for an "investigation" are based primarily, if not exclusively, on the signatories' "experiences" and/or subjective sense that Edwards has wronged them or conducted himself in a manner which, in their opinion, is detrimental to the cause of Flint residents. They are not accusing Edwards of violating any criminal statute or other technical or commonly-understood professional or occupational standard. Cf. Tronfeld v. Nationwide Mut. Ins. Co.,
With respect to the statements concerning (1) "abuses of professional power" and (2) the "harm" Edwards' actions allegedly caused, both statements are expressions of opinion and/or unverifiable by a "core of objective evidence." Milkovich,
Finally, these accusations, like many others scattered throughout the Letter, simply are not objectively capable of proof or disproof. In Milkovich, the Supreme Court, addressing the issue of verifiability, held that whether the petitioner, Michael Milkovich, committed perjury, as reported by respondent Lorain Journal Company, was verifiable because it could be determined by "a core of objective evidence." Milkovich,
While Milkovich does not specify the quantity or quality of evidence necessary to determine whether an allegedly defamatory statement is "verifiable," amorphous claims of "abuses of professional power" and non-specific accusations of causing "harm" are more analogous to "broad, unfocused, wholly subjective" comments than "factual expressions ... permitt[ing] liability to be imposed." Lauderback,
(2) Paragraph 13(b)
This is dishonest, paternalistic and exploitative and, we fear, used by Mr. *516Edwards to build his own professional and financial power ... Far too many residents are exhausted from Mr. Edwards bullying ... Mr. Edwards is using our crisis and suffering for entertainment, intrigue, exhibitionism, and personal power that might attract the media and outside readers but are completely inappropriate for the circumstances.
Edwards complains that statements in paragraph 13(b) are defamatory because they contain factual statements and/or implications, inferences, or insinuations that he is guilty of professional misconduct or other wrongful activity, including exploitation for private gain, bullying, and using the suffering of others to increase his personal power. ECF No. 9, at 8-9. Edwards further avers that the statements falsely state or imply that he lacks integrity and is unfit to perform his professional duties. Id. at 9.
While these statements are undoubtedly irksome from Edwards' perspective, they plainly qualify as constitutionally protected opinion. Tellingly, Edwards elides (through ellipses) crucial context for assessing the defamatory potential of statements contained in paragraph 13(b). Immediately preceding the excerpt above is the following sentence: "[r]esidents of Flint object to Mr. Edwards fighting his own petty and vicious fights against anyone and everyone he sees as a challenger or competitor, and against anyone and everyone Flint residents turn to for help other than himself, all under the guise of 'protecting' and 'saving' us, or 'defending' science." ECF No. 9-1, at 2. The string of adjectives which Edwards alleges as defamatory must be viewed as commenting upon conduct described, and within the context of the exasperated language presented, in the preceding sentence. See Moldea v. N.Y. Times Co.,
Virginia law reveals many decisions in which Virginia courts have rejected claims alleging unflattering, but nonetheless protected, expressions of the sort contained in paragraph 13(b). Indeed, many of these decisions hold that "opinions about a plaintiff's character or conduct cannot form the basis for a defamation claim," especially where the challenged "[s]tatements that are relative in nature and depend largely upon the speaker's viewpoint," Fuste v. Riverside Healthcare Ass'n,
*517Here, consistent with the above precedent and a common-sense reading of the statements contained in paragraph 13(b), the court concludes that the characterization of Edwards' conduct as "dishonest, paternalistic, and exploitative"26 belongs squarely in the category of constitutionally protected speech. No reasonable reader would interpret the use of these adjectives as representing anything other than the subjective views of the authors critiquing conduct described in the sentence immediately preceding the one at issue. The characterization is clearly relative in nature and perspective-dependent. Indeed, behavior that might qualify as "exploitative" or "paternalistic" to one person, although being perfectly acceptable to another, demonstrates that evaluative assessments of this sort involving "hopelessly imprecise" terms for which there is no well-accepted, agreed-upon meaning are within the range of non-actionable opinion.27 Ollman,
Further, the statement that Flint residents "are exhausted from Mr. Edwards bullying" is similarly perspective-dependent--a statement that can be shown to be true, but only in the context of a particular viewpoint-and therefore cannot be defamatory. Indeed, a charge of bullying is an intrinsically relative statement, for as the defendants state, "what one person may perceive as bullying, another may describe as assertiveness." ECF No. 31, at 10 ; see Hupp v. Sasser,
Here too, the immediate context of these statements would also signal their subjective basis and character. In addition to the statement criticizing Edwards for "fighting his own petty and vicious fights against anyone and everyone he sees a challenger or competitor ...," the first clause excerpted by Edwards in paragraph 13(b) is *518followed by a claim that his conduct "violates the most basic right that we have for self-determination." ECF No. 9-1, at 2. The second clause in paragraph 13(b) concerning bullying is immediately followed by the following statement: "his claims to be the 'humanitarian' who so 'cares' for the people, and his Hollywood antics - this is not Entertainment Tonight."
(3) Paragraph 13(c)
Mr. Edwards' portrayal of Flint residents as dumb, dirty and vulnerable to being misled by anyone other than himself started in early 2016, is ongoing, and is misguided and offensive ...
Edwards complains that the above statement is factually false because he has never "stated" that Flint residents are "dumb, dirty and vulnerable to being misled," or done anything to portray them as such. ECF No. 9, at 9. He further claims that this statement suggests that he lacks integrity, is unfit to perform his professional duties, harms his reputation, and lowers the esteem with which he is regarded in his professional community because he "belittles, insults, and treats citizens with disrespect and acted callously in a community where he works as a scientist and advocate."
It should be noted at that outset that the challenged statement is not accusing Edwards of having actually "stated" that Flint residents are "dumb, dirty, and vulnerable to being misled." The plain language of the text indicates that the statement relates not to a direct quotation, but rather, to an alleged "portrayal," one which the authors consider, from their perspective, "misguided and offensive."28 Moreover, because the authors disclose the underlying basis for their opinion regarding this alleged portrayal (discussed below), this statement cannot support a claim for defamation. See Chapin,
The allegedly defamatory statement excerpted in paragraph 13(c) appears in the Letter as paragraph 3. This umbrella paragraph, titled, "Unsubstantiated defamation of Flint residents," is supported by three subparagraphs, numbered 3(a) - 3(c). In these three subparagraphs, the authors set forth and/or articulate the basis supporting their claim that Edwards has portrayed as "dumb, dirty, and vulnerable to being misled," and explained why they consider this portrayal "misguided and offensive." ECF No. 9-1, at 2. In paragraph 3(a) of the Letter, the authors state, among other things, that "WE, Flint residents, are the ones who discovered our water's contamination months before we brought Mr. Edwards in our city ... [and] despite Mr. Edwards' claim to the contrary, WE are the ones who have always led and continue to lead the activism on the ground. In *519reality, Mr. Edwards' work wouldn't be possible without US."
This same subparagraph provides a hyperlink connecting readers to an article dated May 31, 2016 published by The Guardian titled "Scientists say Flint's water safe enough for hand-washing and showering," The article states, in relevant part:
Marc Edwards, a Virginia Tech engineering professor whose testing last summer confirmed the lead contamination of Flint's water, said sampling in recent months has found that lead levels are steadily declining, although they remain too high for people to drink from the tap without a filter. Also trending downward are bacteria that can cause legionnaires' disease, while byproducts from disinfectant chemicals are at normal levels, he and other specialists said.
"We're seeing some very, very encouraging results," Edwards said at a news conference in Flint, adding that he was "pretty hopeful" the water would meet federal standards for lead content within the next six months.
The upbeat assessment contrasted with a grim portrayal by Ruffalo and Water Defense, an organization he founded, which said in February its testing had turned up lead and dangerous chemicals in sinks, tubs, showers and water heaters. Ruffalo, who starred in the Oscar-winning film Spotlight, has continued sounding the alarm, while Edwards has accused him of fearmongering based on flawed testing that has frightened some people into forgoing basic hygiene.
"Many parents were deciding not to allow their children to take baths or shower or even wash their hands, they were so afraid," Edwards said in a phone interview.
Edwards was hired by the city in January to oversee water testing, his work funded through private donations.
Despite his sharp criticism of state and federal agencies' performance, he said on Tuesday the situation had improved, with phosphate treatments coating pipes and residents heeding pleas to flush more water through the system, washing away lead-tainted rust.
Edwards acknowledged many in Flint "have been through hell" and are understandably distrustful of authority, particularly those suffering from skin rashes and other symptoms they blame on the water.
But he said residents should question the credibility of Ruffalo's group.
"They're not scientists, nor are they familiar with how to sample water," Edwards told the AP.
ECF No. 27-1 (Ex. A).29
Irrespective of the truth of the information contained in The Guardian article, it *520cannot be argued that the authors failed to disclose the factual basis for feeling that Edwards portrayed them as "dumb, dirty, and vulnerable." The statement in question is clearly based on information in paragraphs 3(a) - 3(c) of the Letter and information pertaining to Flint residents' bathing habits and vulnerability contained in The Guardian article. This disclosure permits readers to draw their own conclusions about whether this characterization is overstated or unfair. See Agora, Inc. v. Axxess, Inc.,
(4) Paragraph 13(d)
Contrary to Mr. Edwards' claims, Flint residents were never told that shigella was in our tap water and, as a whole, never stopped using proper hygiene from fear of the water. The allegation that FACHEP announced that they found shigella in Flint water is a lie. The allegation that WE caused our own shigella outbreak because we stopped bathing out of fear of the water, is also a lie.
Edwards complains that paragraph 13(d) contains factual statements and/or implications, inferences, or insinuations suggesting that he lacks integrity and is unfit to perform his professional duties because he has (1) purposefully misrepresented and/or manipulated scientific data, (2) accused Flint residents of not bathing, (3) stated "that FACHEP announced that they found shigella in Flint water," and (4) is a liar. He claims generally that "none of these statements are true." ECF No. 9, at 9-10. More specifically, he states that he (1) never "misrepresented or manipulated scientific data," that he (2) "never told lies regarding shigella or altered bathing habits," and (3) always referred to, or spoke consistently with, data or reports from the Center for Disease Control ("CDC") and other authorities when discussing bathing and shigella, and (4) otherwise conducted himself in accordance with the professional duties and standards expected of those working in his vocation.
The two sentences alleged as defamatory in paragraph 13(d) come closer to asserting actual facts. Edwards argument vis-à-vis paragraph 13(d) is twofold. Edwards first appears to deny that he actually "stated" and/or made either of the claims the authors' later call lies. In other words, Edwards appears to claim that these claims were falsely attributed to him. Edwards then asserts that the authors' use of the term "lie" implies that he "lacks integrity and is unfit to perform his professional duties," and is a "liar." ECF No. 9, at 9.
Whether Edwards ever "stated" and/or made either of the aforementioned claims attributed to him in paragraph 13(d) is, theoretically, verifiable. In Tharpe v. Saunders, the Supreme Court of Virginia endorsed the Supreme Court's holding in Masson v. New York Magazine,
With respect to the first claim Edwards appears to assert was falsely attributed him, the court credits Edwards' claim of falsity. The analysis, however, does end there, for to be actionable in Virginia, the attribution must not only be false, but also defamatory. In other words, only statements that generate a certain degree of "sting" to one's reputation will support a cause of action. Schaecher, 290 Va. at 92, 772 S.E.2d at 594.
The Supreme Court of Virginia, characterizing the level of harm to one's reputation required to state a claim for defamation, has stated that defamatory language is language which "tends to injure one's reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or ... tends to hold him up to scorn, ridicule, or contempt, or ... is calculated to render him infamous, odious, or ridiculous." Schaecher,
Edwards fails to explain how the first allegedly false attribution-that Flint residents were told or that there was an announcement that shigella was in their tap water-is defamatory. Nor is the court able to discern the requisite "sting." Indeed, the statement is facially inoffensive and Edwards has failed to identify what, if any, defamatory implications arise from attributing this claim to him. In short, Edwards has not established any way in which the first allegedly false attribution is capable of defamatory meaning.
With respect to the second claim Edwards avers was falsely attributed to him-that Flint residents "caused" the shigella outbreak by changing their bathing habits due to fear of the water-the court finds that Edwards has (1) failed to adequately plead falsity, and that the (2) attribution is substantially true. When falsity is an element of a state law defamation claim, as it is in Virginia, federal courts have required plaintiffs to plead facts that, if proven, would allow a reasonable person to consider the statement false. See Tannerite Sports, LLC v. NBC Universal News Grp.,
Normally, on a motion to dismiss a defamation suit on the basis that a statement is non-actionable, the court must *522"credit the plaintiff's allegation of the factual falsity of a statement" unless the allegation of falsity is vague and conclusory or contradicts an external document incorporated into the complaint. Dangerfield v. WAVY Broad., LLC,
Here, Edwards' falsity averment vis-à-vis the second, allegedly false attribution is not only (1) vague and ambiguous, but it is (2) contradicted by at least one document properly before the court, the authenticity of which is undisputed. In his pleadings, Edwards first appears to outright deny that he ever "accused Flint resident [sic] of not bathing," stating "none of these statements is true." ECF No. 9, at 9. In the same breath, Edwards qualifies this denial, stating that he "never told lies regarding shigella or altered bathing habits, and ... always referred to, or spoke consistently with, data and/or reports from the Center for Disease Control and other authorities when discussing bathing and shigella...."
In his opposition to the defendants' motion to dismiss, Edwards further equivocates on the issue of whether he claimed that Flint residents altered their bathing habits, and whether these altered habits "caused" the shigella outbreak. Indeed, rather than distance himself from the claim falsely attributed to him, Edwards states his intention to "introduce at trial a CDC PowerPoint presentation explicitly stating altered bathing habits contributed to Flint's shigella outbreak." ECF No. 21, at 24. Why would Edwards claim to have never asserted that which he also plans to introduce evidence to prove? Insofar as Edwards' cause of action for defamation in paragraph 13(d) rests on false attribution of the claim that Flint residents "caused" the shigella outbreak by changing their bathing habits, falsity has not been unambiguously pled. See Brokers' Choice of Am., Inc. v. NBC Universal, Inc.,
Furthermore, Exhibit 2 of the defendants' motion to dismiss, which the court earlier concluded was incorporated by reference into Edwards' pleadings, indicates that the above attribution to Edwards is substantially true. Though affirmative defenses such as substantial truth are, as previously noted, generally adjudicated at the summary judgment stage rather than on a motion to dismiss, this case presents *523one of those "rare circumstances" where facts sufficient to rule on an affirmative defense are alleged in the complaint. See Goulmamine v. CVS Pharmacy, Inc.,
However, "before treating the contents of an attached or incorporated document as true, the district court should consider the nature of the document and why the plaintiff attached it." Goines,
Here, the court finds that it may consider Exhibit 2 for its truth, and credit the factual content of the document over conflicting allegations in Edwards' Amended Complaint. Edwards explicitly relies in part on the transcript of his remarks (Exhibit 2) in pleading actual malice vis-à-vis the authors' use of the use "tribal" in paragraph 13(h). See ECF No. 9, at 9 (stating that defendants "acted with actual malice each time they stated that Edwards called Flint residents 'tribal,' because ... the word 'tribal' never appears in the transcript of Edwards' presentation ..."). Moreover, the transcript is not the sort of "unilateral" document submitted by a defendant that the Fourth Circuit has cautioned against considering for its truth, as it was not "prepared by or for" the defendants, and therefore is unlikely to "reflect the defendant[s'] version of events or contain self-serving, exculpatory statements that are unlikely to have been adopted by the plaintiff." Goines,
In light of the fact that a hyperlink to the transcript was included in two versions of the Letter attached to Edwards' own pleadings, and because he relied upon the transcript for its truth in alleging actual malice, Edwards was both on notice of the factual contents of the transcript and is presumed to have "adopted as true the contents of the document." Goines,
The lecture that is the subject of the audio transcript (Exhibit 2) is titled "Truth-Seeking in the Age of Tribalism," and dated February 20, 2018. The transcript, in relevant part, attributes the following remarks to Edwards: (1) "[t]he other sort of thing that happened after the emergency was declared and everyone was rolling up their sleeves and trying to work on this problem, all these people came and tried to help"; (2) "[t]hey came into town, and it's very clear from their first [YouTube] video, they had one intention, and one intention only, which was to claim that the water in Flint was not safe for bathing or showering"; (3) "there are reasons that we take baths and showers, basic public hygiene ... [s]o important to public health, prevents horrible, horrible diseases ... [like] shigella, which is spread by fecal contact hand to hand"; (4) "What happened in Flint, after [a celebrity-affiliated] non-profit came to town and started scaring people about the supposed dangerous bathing and showing? Flint was about to experience one of the worst shigella outbreaks in their history ..."; (5) "[Flint] moms and dads started changing their children's bathing habits. Everyone, many people in Flint did this ... studies showed 80% of Flint residents changed their bathing habits, including 75% showered less frequently, 70% were taking shorter showers"; (6) "... this shigella curve wasn't known at the time." ECF No. 13-3, at 10-12. These statements indicate that the "substance, the gist, the sting" of the second attribution at issue in paragraph 13(d) is justifiable, and as such, cannot support a claim for defamation. Jordan,
In addition to appearing to assert that the above "claims" were falsely attributed to him, Edwards avers the authors' labelling those claims "lies" is tantamount to (1) accusing him of being a "liar" and of (2) "misrepresent[ing] or manipulat[ing] scientific data." ECF No. 9, at 9. The court finds no basis supporting the latter implication.30 Further, numerous considerations militate in favor of concluding that the use of the term "lie" in the second and third sentences of paragraph 13(d) constitutes non-actionable rhetorical hyperbole. See *525Schnare v. Ziessow,
The universe of defamation cases involving accusations of lying and/or the familiar epithet of "liar" is expansive and singularly lacking in consistency. What is clear, however, is that context is frequently dispositive as to whether imputing dishonesty is actionable or qualifies as non-actionable opinion or hyperbole. In his treatise on defamation, Judge Robert D. Sack explained:
The terms 'lie' and 'liar' are frequently used to characterize statements with which the speaker vehemently disagrees. If in context the words mean that the defendant disapproves, it is a protected epithet. If it literally implies that the plaintiff made a specific assertion or series of assertions knowing them to be false, it may be actionable.
Robert D. Sack, Sack on Defamation: Libel, Slander and Related Problems § 2.4.7 at 2-48-2-49 (4th ed. 2010). In the context of analogous public debates and controversies, many federal courts, including several in the Fourth Circuit, have found that accusations of lying, characterizations of others as liars, and other imputations of dishonesty fall into the first category of non-actionable statements construable only as expressions of opinion.
In Schnare v. Ziessow,
In affirming the district court's grant of the defendants' motion to dismiss, the Fourth Circuit stated that notwithstanding the admonition from Milkovich that there is no wholesale "exemption [from liability]
*526from anything that might be labelled opinion," in determining "whether a statement can be reasonably interpreted as stating actual facts about an individual, we look to the circumstances in which the statement is made" and "whether a reasonable reader would construe them as seriously asserting that [plaintiff] committed the crime of perjury."
Arthur v. Offit, No. CIV.A. 01:09-CV-1398,
In addition to discussing the merits of the vaccination issue, the article described "harsh personal attacks" against Offit, and how he was "physically threatened by critics" and was "the subject of a hostile website," as well as the main target of a "grassroots movement" opposing mandatory vaccination and "claiming that vaccines cause autism and/or otherwise injure children." Id. at *2. The article portrays the plaintiff, who at the time was the acting president of the National Vaccine Information Center ("NVIC"), as the "anti-vaccine movement's brain." Id. In response to plaintiff's positions, the Wired article quotes Offit as saying that " 'Kaflooey theories' make him crazy" and that the plaintiff "makes him particularly nuts as in 'You want to scream' " because "[s]he lies." Id. at *3. In her complaint, the plaintiff asserted that the statement, "she lies," was defamatory and that the defendants committed defamation per se, causing her to appear "odious, infamous, and ridiculous." Id.
In dismissing the case, the district court made several observations germane to the instant action. The court first noted that because the vaccine controversy is an important matter of public concern, "the constitutional and common law protections ... are at their zenith." Id. at *3-4. The court further observed that prior to the "she lies" quote, Offit had stated that his opponents in the vaccination debate made him "want to scream" and described their *527views as "Kaflooey theories." Id. This, the court found, was "precisely the kind of 'loose, figurative' language that tends to negate[ ] any impression that the speaker is asserting actual facts." Id. at *5. In this context, and in the context of an "emotional and highly charged debate about an important public issue" over which the parties have "diametrically opposed views," the court reasoned that Offit's comment "she lies" "cannot reasonably be understood to suggest ... that [plaintiff] is a person lacking honesty and integrity ... [who should be] shunned or excluded by those who seek information and opinion upon which to rely." Id. at *5. Indeed, Offit's comment is "plainly understood as an outpouring of exasperation and intellectual outrage over [p]laintiff's ability to gain traction for ideas that ... Offit believes are seriously misguided, and not as a literal assertion of fact." Id. Lastly, the court noted that the plaintiff's claim of the statement's falsity "threatens to ensnare" the court in the "thorny and extremely contentious debate over the perceived risks of certain vaccines," their association with particular diseases, and, "at bottom, which side of this debate has 'truth' on their side." Id. at *6.
Finally, in Faltas v. State Newspaper,
The court, after finding that Faltas qualified as a limited-purpose public figure because she voluntarily assumed a role of special prominence in a public controversy and "volatile debate," distinguished the facts before it from those in Milkovich. While both the May 23 response in Faltas and the article in Milkovich involved "statements that someone lied or is a liar," the Faltas court held that the "similarity ends there." Id. at 645, 647. In Milkovich, the Faltas court noted, the challenged statements had been written by a sports writer who stated in his regular column that Michael Milkovich, a local high school coach, had lied under oath, an indictable offense, during a hearing into the cause of *528a physical altercation at a wrestling match. Id. at 647-50. The column bore the heading, "[High School] beat the law with the 'big lie,' " and subheading, "[the author] says [High School] told a lie." Id. The column itself contained the following language which, in context, clearly referred to Milkovich: (1) "[the students learned a] lesson which, sadly, in view of the events of the past year, is well they learned early," (2)"[i]t is simply this: If you get in a jam, lie your way out," and (3) "[i]f you're successful enough, and powerful enough, and can sound sincere enough, you stand an excellent chance of making the lie stand up, regardless of what really happened." Id. Unlike the author of the May 23 letter, the Faltas court noted that the columnist in Milkovich (1) "described himself as perhaps the only disinterested person to observe the match," (2) "repeatedly and clearly stated that the plaintiff had lied under oath (the crime of perjury)," using the terms "lie" or "liar" nine or more times, and (3) indicated that the plaintiff " 'had lied, under oath, about what occurred on a given date at a given time - an 'objectively verifiable' event.' " Id. at 647-48.
The Faltas court noted that the May 23 letter was responding to Faltas' own op-ed piece, which was itself written on a "highly controversial topic" "as to which 'experts' obviously disagree, often in less than collegial tones." Id. In this context, the Faltas court concluded that "reasonable reader would presume the letter is an impassioned response to the positions taken by ... Faltas in her article, and nothing more." Id. The court concluded that the allegedly defamatory statements in question, in context, translate to an accusation that plaintiff "baldly states conclusions without data" or, at worst, "manipulated or ignored statistics." Id. at 649. The court held that "[w]hen it comes to 'imaginative expression' and 'rhetorical hyperbole,' few terms have enjoyed so frequent an association in the common culture as the term[ ] 'lie' and 'statistic.' " Id. The author's statements in the May 23 response, written on a topic as to which "emotions and verbal exchanges often ran hot," were therefore found to "fall within the protection afforded for 'hyperbole.' " Id. Lastly, in support of finding the accusations of lying about issues concerning homosexuality non-actionable, the Faltas court noted that underlying scientific issues were not "easily susceptible (if at all) to 'proof' one way or the other." Id.
The facts before the court in this case, as well those pertaining to the challenged statements specifically at issue in paragraph 13(d), are of a feather with those in Schnare, Arthur, and Faltas. Here, as in Schnare, the parties have "positioned themselves on opposite sides of [a] controversy" related to the Flint water crisis, and the "ongoing tension [between the parties] figures prominently" throughout the Letter and would not go unnoticed by readers.
What is more, determining the falsity of the claim that Flint residents caused or contributed to the shigella outbreak by altering their bathing habits, as in Arthur and Faltas, would mire the court in a scientific debate of the sort courts are loathe to resolve in defamation actions. Indeed, Edwards has explicitly stated his *529intent to lead the court, and trier of fact, into just such a morass about the causes of the shigella outbreak by introducing at trial a CDC presentation "explicitly stating that altered bathing habits contributed to Flint's shigella outbreak." ECF No. 21, at 24. See Underwager v. Salter,
Furthermore, several crucial dissimilarities the Faltas court identified between the facts before it and those in Milkovich apply with equal force in the present matter. First and foremost, there is no pretense of disinterestedness nor any semblance of non-partisanship on the part of the authors of the Letter. The authors and/or signatories do not claim to be "disinterested" or impartial observers, nor would a reasonable reader come away with that impression. It would be extremely apparent to even the most credulous reader that the parties are adversaries in a heated public controversy, and that any statement uttered in this context should be received with a heavy dose of skepticism or discounted altogether. Moreover, as in Faltas, the underlying issues in paragraph 13(d), what "Flint residents" in general were told about shigella and when and what caused the reported outbreak are unamenable to being proved true or false by a core of objective evidence or by reference to "what occurred on a given date at a given time - an 'objectively verifiable event.' "
(5) Paragraph 13(e)
What scares us is Mr. Edwards who uses his position as a scientist to misrepresent us and silence us.
Edwards contends that the above statement suggests that he lacks integrity and is unfit to perform his professional duties. He claims these alleged implications are factually false because he has never used his position as a scientist to misrepresent or silence Flint residents or anyone else. ECF No. 9, at 10.
The complained-of statement is plainly non-actionable both because it is a rhetorical statement employing loose, figurative language and because it is unverifiable. No reasonable reader would believe the authors use of the word "silence" to mean that Edwards was literally silencing the signatories. Nor would a reasonable reader interpret the use of the term "misrepresent" as implying an assertion of fact, rather than reflecting authors' subjective views. Indeed, it is clear that "[s]uch words *530were ... used ... in a loose, figurative sense" to demonstrate the signatories' disagreement with Edwards generally over a variety of matters. Indeed, considering the general tenor of the language immediately surrounding the challenged statement: "We (of course) bathe, which is why we have been saying that the problems with our water are not over.... "[W]e WANT science that addresses our questions, experiences and needs ... [s]cience has [never] scared us ...," it is apparent that the authors were expressing frustration and indignation at claims by others regarding an emotionally-charged and sensitive subject, namely the personal hygiene and bathing habits of Flint residents, and used hyperbolic, freewheeling, figurative speech to do so.
Further, paragraph 13(e) does not contain provably false content required to support a defamation claim. The court cannot imagine a circumscribed basis or core of objective evidence by which a jury could verify the challenged statement in paragraph 13(e) given the absence of any discernible, objective parameters in the statement itself. Indeed, any attempt to prove the falsity of the statement in paragraph 13(e) would engender an open-ended inquiry into the subjective judgments of the thirty-nine signatories of the Letter. See Gibson v. Boy Scouts of Am.,
(6) Paragraph 13(f)
In May 2016, Mr. Edwards erroneously accused Scott Smith and Water Defense of scaring residents out of bathing ... Mr. Edwards also accused Dr. Laura Sullivan and Mr. McElmurry of FACHEP [Flint Area Community Health and Environment Partnership] of causing Flint residents to stop bathing because their research scared us (according to some reports, Mr. Edwards made the preposterous claim that as many as 80% of us returned to a state of filth). This is insulting and false. It is also blatantly unscientific because Mr. Edwards did not bother to ask actual Flint residents about our bathing habits before coming up with this pronouncement.
Edwards asserts that statements in paragraph 13(f) impute that he lacks integrity and is unfit to perform professional duties. He further avers that said statements are "factually false," because, inter alia, (1) he "never made inflammatory and derogatory comments such as 'returned to a state of filth' " and/or "proclaimed that as many as 80 percent of Flint residents returned to a state of filth," nor (2) "made erroneous accusations regarding Scott Smith, Water Defense or FACHEP." ECF No. 9, at 10. Edwards claims to have referred to and cited CDC bathing statistics "regarding Flint bathing habits in keeping with his professional obligations."
Insofar as Edwards claims to have never quoted or endorsed the 80 percent figure contained in paragraph 13(f), his own remarks at Swarthmore College, as memorialized *531in Exhibit 2, undermine that claim: "They were on the local media telling people that if they let their children bathe in this water they are hurting them and exposing them to carcinogens ... [a]nd moms and dads started changing their children's bathing habits. Everyone, many people in Flint did this. CDC later studies [sic] showed 80% of Flint residents changed their bathing habits, including 75% showered less frequently, 70% were taking shorter showers." ECF No. 13-3, at 10-12.
With respect to the phrase "state of filth," this particular aspect of the challenged statement falls within the category of "lusty and imaginative expression of contempt" or colorful characterization, to wit, protected rhetorical hyperbole. Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v. Austin,
Lastly, Edwards claims he never "made erroneous accusations regarding Scott Smith, Water Defense or FACHEP," as he always "referred to and cited ... CDC statistics regarding Flint bathing habits in keeping with his professional obligations." ECF No. 9, at 10. This ambiguous averment admits of two possible interpretations: (1) Edwards is claiming to have never accused Scott Smith, Water Defense, or the FACHEP of scaring Flint residents out of bathing in the first place, or, (2) although Edwards did accuse the aforementioned parties of scaring Flint residents, it was not incorrect ("erroneous") of him to do so. The court assumes that Edwards' intended the latter interpretation, as it appears to comport more with the plain language of his claim to have always "referred to and cited ... CDC statistics regarding Flint bathing habits." ECF No. 9, at 10.31 Whether Edwards erroneously accused Scott Smith, Water Defense, or the FACHEP of scaring Flint residents out of bathing is a matter of opinion and, in any event, too vague a claim to support an action for defamation or the implication that Edwards lacks integrity or is unfit to perform his professional duties.
(7) Paragraph 13(g)
To our knowledge, there is no one in the scientific community overseeing Mr. Edwards' work or the way he uses his power over powerless residents. As far as we know there is no one in the scientific community ensuring the integrity and honesty of Mr. Edwards' words, research and activism. Mr. Edwards has repeatedly spoken and written about how there are no bacteria or dangerous pathogens in Flint residents' water, even though he is not a microbiologist nor is he doing mass testing within our homes.
Edwards complains that statements in paragraph 13(g)(1) "impute that [he] lacks integrity and is unfit to perform his professional duties," (2) insinuate that he is "not subject to the same peer review and academic oversight to which all members *532of his profession are subject," and (2) suggest that he "abuses 'power' to purposefully harm people" and lacks " 'integrity and honesty' in his professional activities." ECF No. 9, at 10-11. Edwards counters that he is in fact subject to the same review and oversight as other similarly situated professors and scientists, does not abuse power to harm people, and conducts himself with integrity and honesty.
The language employed in the first two challenged statements in paragraph 13(g) make it clear that those statements represent "subjective and speculative supposition" of the sort the Fourth Circuit noted was unlikely to assert actionable facts. Biospherics,
Lastly, Edwards takes issue with the final statement in paragraph 13(g), claiming that the authors "intentionally misrepresent and distort [his] actual comments regarding bathing," and "impugn [him] professionally" by suggesting that he has *533breached the norms and scope of his training, "makes erroneous and irresponsible statements, as well as sweeping generalizations inappropriate for a scientist during the course of his work," and is unfit to be a professor. ECF No. 9, at 10. Here, again, it is theoretically possible to verify whether Edwards has "repeatedly spoken and written about how there are no bacteria or dangerous pathogens in Flint residents' water." See Tharpe,
Yet, even if the court assumes otherwise, the allegedly false attribution at issue and those implications averred by Edwards, lack the requisite "sting" for actionable defamation under Virginia law. While there is no uniform standard in Virginia for assessing actionable "sting," especially where false attribution is at issue, several cases suggest the degree of injury to a person's reputation required to state a claim for defamation and defamation per se. In Echtenkamp v. Loudon Cty. Pub. Sch.,
Here, of course, Edwards claims that the statement at issue was falsely attributed to him rather than made about him to a third party. The holding in Echtenkamp, however, suggests that regardless of whether the statement was made by or about Edwards, substantially greater sting is necessary to state a claim than that which Edwards asserts the allegedly false attribution at issue in paragraph 13(g) is imbued with. In other words, that Edwards may have made a single "inappropriate" or "irresponsible" comment, especially a comment as facially unremarkable as the one at issue, is not sufficiently prejudicial to Edwards' professional reputation to constitute defamation per se or defamation. Cf. Sepmoree v. Bio-Med. Applications of Virginia, Inc., No. 2:14CV141,
*534(attributing to plaintiff, a registered nurse, various statements evincing significant callousness towards patients and implying that several patients should be harmed or murdered); Tharpe,
(8) Paragraph 13(h)
Instead, Mr. Edwards goes around the country giving talks that dismiss our concerns and calls us 'tribal' .... Shockingly, Mr. Edwards has gone as far as to declare that the Flint Water Crisis was over 2 years ago (in 2016).... We need an end to his disruptive presence so that we can finally clean up the mess he has left behind him, focus on healing the rifts he has created between residents, and try to address the real problems plaguing us.
With respect to paragraph 13(h), Edwards contends that he (1) never called Flint residents "tribal." ECF No. 9, at 11. Viewed "[i]n the context of the entire Letter and the circumstances of the Letter's publication," Edwards asserts that attributing the use of this term to him (2) "intentionally and falsely implies, and would be understood by an objective reader to imply" that he is "racist, bigoted, and/or prejudiced against minorities and/or poor individuals."
The statement accusing Edwards of causing "rifts" employs precisely the sort of "loosely definable" or "variously interpretable" term that cannot reasonable be interpreted as a statement of fact. Ollman,
The only remaining allegedly defamatory statement at issue in this case states that "Mr. Edwards ... calls us 'tribal.' " Edwards asserts that the accusation that he called Flint residents "tribal" would be understood by a reasonable reader as implying that he is "racist, bigoted, and/or prejudiced." ECF No. 9, at 11. In light of the defendants' admission that Edwards never "technically" uttered the word "tribal," enclosing "tribal" in quotation marks makes this statement qualitatively different and potentially more misleading than the rest of the allegedly defamatory statements in the Letter. Typically, the use of such punctuation signifies verbatim speech. Indeed, quotation marks are "used chiefly to indicate the beginning and the end of a quotation in which the exact phraseology of another or of a text is directly cited," and, under most circumstances, a reader would expect quotations marks denote a faithful representation of language used by another. Merriam-Webster's New Collegiate Dictionary 942 (1981). In the present case, however, a reasonable, circumspect reader of the Letter, (1) cognizant of the broader and immediate context in which this statement was made, (2) buffeted by roughly twelve paragraphs of emotionally-charged commentary and criticisms of Edwards, and, crucially, (3) mindful of the way in which quotations marks were consistently used throughout the Letter, would not interpret the challenged statement as a direct quotation, but rather as yet another subjective characterization. See Phoenix Trading, Inc. v. Loops LLC,
The controlling authority concerning the defamatory impact and falsity of misquoted material is Masson v. New Yorker Magazine, Inc.,
In concluding that a jury could find these published passages, among others, to be false, the Supreme Court commented upon the nature of quotations as appearing more authoritative and credible than descriptive passages.
The work at issue here ..., as with much journalistic writing, provides the reader with no clue that the quotations are being used as a rhetorical device or to paraphrase the speaker's actual statements. To the contrary, the work purports to be nonfiction, the result of numerous interviews ... [a]t least a trier of fact could so conclude. The work contains lengthy quotations attributed to petitioner, and neither Malcolm nor her publishers indicate to the reader that the quotations are anything but the reproduction of actual conversations. Further, the work was published in The New Yorker, a magazine which at the relevant time seemed to enjoy a reputation for scrupulous factual accuracy. These factors would, or at least could, lead a reader to take the quotations at face value.
Masson,
The facts before this court are distinguishable in almost every respect from those in Masson, and those dissimilarities are such that a reasonable reader of the Letter would interpret the use of quotation marks around the word "tribal" quite differently from a reader of the lengthy quotations contained in The New Yorker Magazine article in Masson. Unlike in Masson, the Letter is manifestly not a piece of journalistic writing, and no reasonable reader would credit any of its contents as such. Nor would a reasonable reader expect scrupulous factual accuracy from a document purporting to represent the views of dozens of individuals sent from a generic, semi-anonymous email address (flintcomplaint@gmail.com) unconnected to a single speaker. Moreover, the Letter is at no point framed in a way which might lull a reasonable reader into taking any of *537part of the statements contained therein at face value.
To the contrary, the exasperated tenor, advocative style, and responsive posture would invariably lead a reasonable person to expect something less than scrupulous factual accuracy. The sentence immediately preceding the statement at issue, for example, reads: "Ultimately, Mr. Edwards' focus, and the focus of any specialist claiming 'save' us, should be on our LIVES, our first-hand EXPERIENCES, our NEEDS, and on the fact that we are still suffering." ECF No. 9-1, at 3. Later in the same paragraph of the Letter, the authors state: "We believe it would be best that Mr. Edwards now leaves our town alone.... Mr. Edwards' choice to initiate drama distracts from the real suffering in Flint and needs to stop NOW."
Most importantly, throughout the Letter, quotation marks are used rhetorically in a manner that cannot rationally be interpreted as verbatim representations of words Edwards actually uttered. Unlike in Masson, where Malcolm provided no reason for a reasonable reader to conclude that the quoted attributions to Masson were anything but verbatim, the consistent (and nearly exclusive) use of quotation marks in the Letter as a rhetorical device make it unreasonable for a reader to construe the use of this punctuation around the word "tribal" as a direct quotation faithful to Edwards' words. The following are salient examples of the rhetorical use of quotation marks in the Letter:
(1) Michigan residents never asked Mr. Edwards to file this complaint on our behalf, nor do we as a "group" support it, so the complaint should be titled "Marc Edwards vs. Whomever He Chooses ..."
(2) Mr. Edwards' claims that he represents "the people of Flint" or works "with Flint residents" are hollow.
(3) Mr. Edwards fighting his own petty and vicious fights ..., all under the guise of "protecting" and "saving" us, or "defending" science.
(4) Far too many residents in Flint are exhausted from Mr. Edwards's bullying, his claims to be the "humanitarian" who so "cares" for the people, and his Hollywood antics - this is not Entertainment Tonight.
Nowhere in his pleadings does Edwards allege that the use of quotation marks in any of the above statements would be understood as direct quotations. Nor could Edwards advance such an argument. The authors are obviously employing quotations marks around single words, such as "save," "humanitarian," or "cares," or short phrases, such as "the people of Flint," to express sarcasm, skepticism, and contempt, or to draw attention to propositions with which the authors disagree or wish to distance themselves. This peculiar use of quotations marks, colloquially referred to as "sneer" or "scare" quotes, throughout the Letter would substantially negate any impression that the complained-of statement represents a direct quotation or straightforward reproduction of Edwards' remarks. Edwards' failure to specifically allege false attribution as to any of the above statements appears to be a tacit acknowledgment of this point. In sum, unlike the article that was the subject of the defamation suit in Masson, the Letter provides numerous clues that quotation marks are being used rhetorically, such that a reasonable reader would not assume *538the marks imply that Edwards himself used the word "tribal."33
V.
In sum, none of the statements alleged by Edwards to be defamatory are of such a character sufficient to support a defamation action. Therefore, the defendants' motion to dismiss for failure to state a claim, insofar as it seeks dismissal of Edwards' claims for defamation per se (Count I) and defamation (Count II) arising from the Letter, is granted.
Edwards' remaining claims for tortious interference with contract expectancy, business relationship, and economic advantage (Count III), common law civil conspiracy (Count IV), and statutory civil conspiracy pursuant to
VI.
For the foregoing reasons, the court will GRANT in part and DENY in part the defendants' motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. The defamation claims alleged in paragraphs 52, 53, 54, 55, 56, and 63 of the Amended Complaint are DISMISSED without prejudice. The defamation claims arising from the Letter are DISMISSED pursuant to Rule 12(b)(2) as to Schwartz and Lambrinidou. The motion to dismiss for want of personal jurisdiction is DENIED as to Mays only for defamation claims arising from the Letter.
The court will GRANT the motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) for all of the allegedly defamatory statements contained in the Letter. These claims are DISMISSED with prejudice. The court will GRANT this same motion to dismiss as to Count III, Count IV, and Count V. Insofar as Counts III-V are predicated upon the Letter, they are DISMISSED with prejudice. Lastly, the defendants' motion for attorney's fees is DENIED.
An appropriate Order will be entered this day.
Related
Cite This Page — Counsel Stack
378 F. Supp. 3d 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-schwartz-vawd-2019.