Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, 

and Agee, JJ., and Russell, S.J. 

TIMMY JACKSON 

v. Record No. 061505 OPINION BY JUSTICE CYNTHIA D. KINSER 

 June 8, 2007 

DENNIS A. HARTIG, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Junius P. Fulton, III, Judge 

 This appeal involves an action for defamation brought 

by an unsuccessful candidate for election to the Virginia 

House of Delegates against the author and publisher of a 

newspaper editorial endorsing the candidate’s opponent. 

Because we conclude that there are no material facts 

genuinely in dispute and that the evidence in the record 

would not permit a reasonable fact finder to conclude, by 

clear and convincing evidence, that the defendants acted 

with actual malice, we will affirm the judgment of the 

circuit court granting summary judgment for the defendants 

and dismissing the defamation action with prejudice. 

FACTS AND PROCEEDINGS 

Timmy Jackson was elected to a four-year term on the 

City of Virginia Beach School Board (the School Board) that 

began in July 1994. At that time, the outgoing School 

Board had already approved a budget for the 1994–1995 

school year. In 1995, the School Board was notified that 
2

it was operating at a deficit, prompting several members of 

the School Board to resign. A special grand jury convened 

to investigate the causes of the budget deficit, and on 

February 26, 1996, it issued a report recommending that the 

remaining members of the School Board who had served during 

the 1994–1995 school year resign or face criminal 

prosecution for violating Code § 22.1-91.1 All School Board 

members except Jackson and Ferdinand V. Tolentino resigned. 

Jackson and Tolentino were each subsequently indicted for 

the misdemeanor charge of malfeasance related to the School 

Board budget deficit during the 1994–1995 school year, but 

a jury acquitted both on August 14, 1996. Jackson 

continued to serve on the School Board until the end of his 

term. 

In 1998, Jackson ran for election to a seat on the 

Virginia Beach City Council. On May 3, 1998, the 

Virginian-Pilot, a newspaper published by Landmark 

 1

 Code § 22.1-91 provides: 

No school board shall expend or contract to expend, in 

any fiscal year, any sum of money in excess of the funds 

available for school purposes for that fiscal year without 

the consent of the governing body or bodies appropriating 

funds to the school board. Any member of a school board or 

any division superintendent or other school officer 

violating, causing to be violated or voting to violate any 

provision of this section shall be guilty of malfeasance in 

office. 
3

Communications, Inc. (Landmark), printed an editorial 

endorsing Jackson’s candidacy for city council, stating: 

Jackson has achieved much on the School Board and 

promises to be a strong voice for education on 

council. This former police sergeant has shown 

himself to be a man of integrity who refused to 

allow himself to be bullied off the School Board 

by the commonwealth’s attorney two years ago. 

Jackson insisted he was blameless in the matter 

of the school system’s $12 million deficit – 

caused by the then-school superintendent and his 

deputies. A jury agreed, and Jackson was 

exonerated. 

Despite the Virginian-Pilot’s endorsement, Jackson lost the 

election for city council. 

 Jackson made another bid for public office in 2003, 

this time seeking to represent the twenty-first House of 

Delegates district.2 On November 1, 2003, three days prior 

to the election, the Virginian-Pilot published an editorial 

written by Dennis A. Hartig that contained the following 

statements: 

[W]e have deep misgivings about Jackson’s 

qualifications . . . . 

Jackson, a former police officer and Republican, 

was honored to be among the first citizens 

elected to the Virginia Beach School Board. It 

turned out badly. 

It was on his watch that the schools went 

millions of dollars in the red, a disaster that 

 2

 All of the twenty-first House of Delegates district 

is located within the City of Virginia Beach. Code § 24.2-

304.01. 
4

took years to overcome. Jackson was indicted for 

malfeasance, but was exonerated, then resigned. 

Jackson has given us no reason why voters should 

forgive this blot on his record. Now he wants 

voters to trust him to oversee a state budget 200 

times as large as the School Board’s. That’s 

asking too much. 

On the morning of the election, the Virginian-Pilot, at 

Jackson’s request, printed a correction of its misstatement 

that Jackson had resigned his seat on the School Board. 

Jackson lost the election. 

 Jackson subsequently filed a motion for judgment 

against Hartig and Landmark in the Circuit Court of the 

City of Portsmouth, alleging that Hartig and Landmark 

published false and defamatory statements about him in the 

Virginian-Pilot’s November 1, 2003 editorial. Jackson 

claimed that Hartig and Landmark either knew that these 

statements were false at the time of their publication or 

printed them with reckless disregard for whether they were 

true or false. Jackson premised this allegation, in part, 

on their variance from the supposedly “factually accurate” 

statements appearing in the Virginian-Pilot’s May 3, 1998 

editorial. Jackson further alleged that Hartig and 

Landmark knew that the portion of the November 1, 2003 

editorial stating, “It was on his watch that the schools 

went millions of dollars in the red” was false because the 
5

defendants knew not only that the 1994-1995 School Board 

budget had already been approved when Jackson began his 

tenure on the School Board, but also that the School Board 

did not operate at a deficit during any of the years in 

which Jackson voted to approve the budget. Jackson relied 

on these same alleged facts to assert that Hartig and 

Landmark knew their statement characterizing the deficit as 

“a disaster that took years to overcome” was false. 

Jackson also claimed that Hartig and Landmark knew that 

Jackson had not resigned from the School Board, but had 

publicly refused to do so. Finally, the November 1, 2003 

editorial, according to Jackson, accused him of criminal 

activity even though Hartig and Landmark knew that a jury 

had found Jackson not guilty of the malfeasance charge. 

Along with a demurrer and grounds of defense, Hartig 

and Landmark filed a motion to transfer venue to the 

Circuit Court of the City of Virginia Beach. The Circuit 

Court of the City of Portsmouth granted the defendants’ 

motion, but it gave Jackson the option of having the case 

transferred to either the Circuit Court of the City of 

Virginia Beach or the Circuit Court of the City of Norfolk, 

where Landmark’s corporate offices were located. Without 

waiving his objection to the circuit court’s decision 

granting the motion to transfer venue, Jackson chose the 
6

Circuit Court of the City of Norfolk. Following the 

transfer of the case, that circuit court overruled the 

defendants’ demurrer, and the parties proceeded with 

discovery. 

 Hartig and Landmark filed a motion for summary 

judgment, along with several exhibits, including a copy of 

the special grand jury’s report and certain discovery 

responses. In particular, the circuit court had before it 

Jackson’s answer to an interrogatory propounded to him by 

Hartig and Landmark, asking Jackson to “[i]dentify and 

describe in detail and with particularity any evidence you 

contend establishes that Mr. Hartig published the alleged 

defamatory statements with constitutional actual malice.” 

Jackson responded: 

 The editorial board failed to even review 

their own newspaper files concerning . . . my 

record, the trial and my exoneration, my 

continued service until the end of term (1994-

1998), and their very own endorsement of me in 

May 1998, publishing factually accurate 

information stating the direct opposite of 

content in the November 1, 2003 editorial. Such 

reckless disregard for the truth or the 

Defendants’ knowledge of the falsity of the 

defamatory content in the November 1, 2003 

article constitutes actual malice. Moreover Mr. 

Hartig told me in a phone conversation on 

November 4, 2003 that I had to pay for the 

deficit. 

Hartig and Landmark also included as an exhibit Hartig’s 

response to Jackson’s requests for admission, in which 
7

Hartig admitted that he “had read the substantive 

provisions of the [special] [g]rand [j]ury [r]eport before 

the May 3, 1998 editorial was published.” 

Additionally, in their memorandum in support of the 

motion for summary judgment, Hartig and Landmark admitted 

that Hartig did not review either the Virginian-Pilot’s 

files or its May 3, 1998 endorsement of Jackson for city 

council before writing the November 1, 2003 editorial. The 

defendants represented that Hartig was the managing editor 

of the Virginian-Pilot’s “mainsheet” in 1998 and therefore, 

he neither wrote nor approved the newspaper’s editorial 

endorsing Jackson’s candidacy that year. Though Hartig and 

Landmark acknowledged that Hartig knew Jackson had been 

acquitted of the malfeasance charge brought against him in 

1996, they maintained that such knowledge did not mean that 

Hartig knew that Jackson was not responsible for the budget 

deficit. 

In a letter opinion, the circuit court summarized the 

contents of the November 1, 2003 editorial, concluding that 

it contained “several statements of fact which are not in 

dispute, statements of opinion which suggest that in spite 

of the jury verdict, Jackson was responsible for the 

[S]chool [B]oard budget deficit, and one factually false 

statement that Jackson eventually resigned his position 
8

from the . . . School Board.” The court concluded that the 

statement characterizing the budget deficit as a “disaster 

that took years to overcome” was an opinion, and thus, not 

subject to an action for defamation. The court further 

concluded that, although the statement that Jackson 

resigned from the School Board after being exonerated at 

trial was “false, [it did] not disparage him.” Finally, 

even though the circuit court believed that the November 1, 

2003 editorial could be read as insinuating that Jackson 

had committed a crime, the court concluded that Jackson’s 

acquittal on the charge of malfeasance was insufficient, by 

itself, to establish that the defendants had acted with 

actual malice. Thus, the circuit court sustained the 

defendants’ motion for summary judgment. 

 Jackson moved the circuit court to reconsider its 

ruling, submitting as exhibits deposition testimony by 

Jackson, Hartig, and Jackson’s opponent in the 2003 

election,3

 as well as copies of Virginian-Pilot news stories 

 3

 The record does not disclose any agreement between 

the parties allowing the use of depositions in the circuit 

court’s consideration of Hartig and Landmark’s motion for 

summary judgment. Indeed, Jackson specifically noted an 

objection to such use of depositions on the circuit court’s 

final order dismissing his motion for judgment with 

prejudice. In the absence of such an agreement between the 

parties, deposition testimony was not properly before the 

circuit court and could not be used in considering whether 

to sustain a motion for summary judgment. Code § 8.01-420; 
9

covering Jackson’s trial in 1996. Jackson also included 

notes compiled by Hartig and another member of the 

Virginian-Pilot editorial board during an interview with 

Jackson prior to the publication of the November 1, 2003 

editorial. The notes purportedly indicated Jackson served 

a full, four-year term on the School Board. 

Hartig and Landmark filed a memorandum in opposition 

to Jackson’s motion to reconsider, attaching as an exhibit 

interrogatory responses wherein they detailed portions of 

the special grand jury report Hartig used in forming his 

opinion that Jackson, as a School Board member, bore some 

responsibility for the budget deficit. The defendants 

further stated in the interrogatory answer that, while 

preparing the November 1, 2003 editorial, Hartig reviewed 

several articles published in the Virginia-Pilot concerning 

the special grand jury report, which, according to Hartig, 

quoted the special grand jury’s conclusions that 

(a) the School Board did not regard financial 

oversight as part of its responsibilities, (b) 

the School Board and the superintendent bore the 

ultimate legal responsibility for the deficit, 

(c) the overwhelming evidence was that School 

Board members, including [Jackson], committed 

malfeasance in office, and . . . (e) the School 

Board members, including [Jackson], should be 

indicted for malfeasance if they refused to 

resign. 

 

Rule 3:20; Gay v. Norfolk & W. Ry. Co., 253 Va. 212, 214, 

483 S.E.2d 216, 218 (1997). 
10

The circuit court denied the motion to reconsider and 

dismissed Jackson’s motion for judgment with prejudice. We 

awarded Jackson an appeal on two assignments of error. 

First, Jackson assigns error to the decision of the Circuit 

Court of the City of Norfolk to grant summary judgment for 

the defendants. Second, he challenges the ruling of the 

Circuit Court of the City of Portsmouth granting the change 

of venue. 

ANALYSIS 

 In recognition of the importance of safeguarding an 

individual’s basic entitlement to the uninterrupted 

enjoyment of his or her reputation, Virginia law allows a 

person who has been the subject of libel or slander to 

bring a cause of action for defamation. Tronfeld v. 

Nationwide Mut. Ins. Co., 272 Va. 709, 713, 636 S.E.2d 447, 

449 (2006). To prevail on a claim for libel such as the 

one asserted by Jackson, a plaintiff in Virginia must 

establish the publication of a false and defamatory 

statement of fact with the requisite intent. Jordan v. 

Kollman, 269 Va. 569, 575, 612 S.E.2d 203, 206 (2005). 

Because the right to seek legal redress for another’s 

defamatory statements is constrained by the protections of 

free speech established in the First Amendment to the 
11

United States Constitution and Article I, Section 12 of the 

Constitution of Virginia, Yeagle v. Collegiate Times, 255 

Va. 293, 295, 497 S.E.2d 136, 137 (1998), the intent 

required to prove defamation depends, in part, on whether a 

plaintiff is a public or private figure. Jordan, 269 Va. 

at 576, 612 S.E.2d at 207. 

In that regard, the Supreme Court of the United 

States, in New York Times Co. v. Sullivan, 376 U.S. 254 

(1964), held that the federal constitution’s guarantees of 

the rights of the public and the press to engage in 

uninhibited debate concerning public issues required the 

formulation of a rule prohibiting a public official from 

recovering damages for defamatory falsehoods related to his 

official conduct except upon proof that the defamatory 

statement was made “with ‘actual malice’ – that is, with 

knowledge that it was false or with reckless disregard of 

whether it was false or not.” Id. at 279–80. The Supreme 

Court has since required proof of actual malice in cases 

where a political candidate asserts a claim for damages 

allegedly caused by defamatory statements touching on his 

fitness for office. Monitor Patriot Co. v. Roy, 401 U.S. 

265, 271–72 (1971). As Jackson argues on brief, the 

obvious import of the November 1, 2003 editorial was to 

persuade voters that he had been “fiscally irresponsible 
12

while serving on the School Board,” and that they, 

therefore, should not elect him to another position of 

stewardship over public funds. Therefore, since the 

alleged defamatory statements clearly spoke to Jackson’s 

qualifications for elective office, this case falls 

squarely within the New York Times framework. See Ocala 

Star-Banner Co. v. Damron, 401 U.S. 295, 300–01 (1971). 

 In order to establish actual malice, a plaintiff “must 

demonstrate by clear and convincing evidence that the 

defendant realized that his statement was false or that he 

subjectively entertained serious doubt as to the truth of 

his statement.” Jordan, 269 Va. at 577, 612 S.E.2d at 207 

(citing Bose Corp. v. Consumers Union of the United States, 

Inc., 466 U.S. 485, 511 n.30 (1984)). In the context of 

this case, Jackson’s defamation claim can survive summary 

judgment only if the pleadings, orders, admissions, and 

answers to interrogatories reveal a genuine dispute of 

material facts that would allow a reasonable fact finder to 

conclude Hartig and Landmark published the November 1, 2003 

editorial either knowing that the statements contained 

therein were false or entertaining serious doubt that they 

were true. Rules 3:20, 4:8(e); Klaiber v. Freemason 

Assocs., Inc., 266 Va. 478, 484, 587 S.E.2d 555, 558 

(2003). In reviewing the circuit court’s decision to 
13

sustain the defendants’ motion for summary judgment, we 

review those specific portions of the record in the light 

most favorable to the nonmoving party, Jackson. Id. at 

481–82, 587 S.E.2d at 556. We also accept “as true ‘those 

inferences from the facts that are most favorable to the 

nonmoving party, unless the inferences are forced, 

strained, or contrary to reason.’ ” Id. at 484, 587 S.E.2d 

at 558 (quoting Dudas v. Glenwood Golf Club, Inc., 261 Va. 

133, 136, 540 S.E.2d 129, 130–31 (2001)). 

As evidence of actual malice, Jackson now points to 

the facts in the record detailing the Virginian-Pilot’s 

coverage of the events surrounding the School Board’s 

budget deficit, Jackson’s refusal to resign, his 

indictment, and his ultimate acquittal on the malfeasance 

charge. According to Jackson, these news stories, as well 

as Hartig’s prior position as managing editor of the 

newspaper’s mainsheet and the Virginian-Pilot’s May 3, 1998 

endorsement of his candidacy for city council, demonstrate 

that Hartig knew Jackson had not committed malfeasance in 

office and that he had not resigned. Jackson also relies 

on the interview notes generated by Hartig and another 

editorial board member that purportedly showed Jackson 

served a full, four-year term on the School Board. 

Additionally, Jackson directs our attention to Hartig’s 
14

statement in a telephone conversation with Jackson on 

November 4, 2003 that Jackson “had to pay for the deficit.” 

Viewing these facts in the light most favorable to 

Jackson, we conclude that they are insufficient as a matter 

of law to establish clear and convincing evidence that 

Hartig and Landmark published the statements in the 

November 1, 2003 editorial with actual malice. The mere 

presence of news stories in a newspaper’s files containing 

information that contradicts an allegedly defamatory 

statement by the news organization is insufficient to 

establish actual malice. New York Times, 376 U.S. at 287. 

Furthermore, a media defendant in a defamation claim 

subject to the New York Times standard cannot be said to 

have acted with actual malice on account of its failure to 

investigate the accuracy of an allegedly defamatory 

statement before publishing it unless the defendant first 

“had a high degree of awareness of [its] probable falsity.” 

Shenandoah Publ’g House, Inc. v. Gunter, 245 Va. 320, 324, 

427 S.E.2d 370, 372 (1993); see also St. Amant v. Thompson, 

390 U.S. 727, 731 (1968) (“[R]eckless conduct is not 

measured by whether a reasonably prudent man would have 

published, or would have investigated before publishing. 

There must be sufficient evidence to permit the conclusion 

that the defendant in fact entertained serious doubts as to 
15

the truth of his publication.”). Thus, in the context of 

the actual malice inquiry, a duty to investigate the 

accuracy of one’s statements does not arise until the 

publisher of those statements has a high degree of 

subjective awareness of their probable falsity. See HarteHanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 

(1989) (citing Garrison v. Louisiana, 379 U.S. 64, 74 

(1964)). 

Acknowledging that a failure to investigate does not 

alone support a finding of actual malice, Jackson contends, 

nevertheless, that Hartig purposefully avoided the truth 

and thereby published the November 1, 2003 editorial with 

actual malice. See id. at 692 (“Although failure to 

investigate will not alone support a finding of actual 

malice, . . . the purposeful avoidance of the truth is in a 

different category.”). We disagree. In particular, 

neither the incorrect statement that Jackson resigned from 

the School Board nor his acquittal establish that Hartig 

entertained any serious doubt about the truth of his 

statements asserting that Jackson had a “blot on his 

record” because he bore some degree of responsibility for 

the School Board’s disastrous budget deficit even though he 

was acquitted of the criminal charge of malfeasance. That 

the Commonwealth failed to obtain a conviction against 
16

Jackson for malfeasance in office does not, of its own 

force, impeach the reliability of the special grand jury 

report’s statement that Jackson admitted under oath that he 

had “some level of responsibility for spending millions of 

dollars of public money they did not have.” Furthermore, 

the evidence in the record, including the interview notes, 

does not establish that Hartig published the statement that 

Jackson resigned his seat on the School Board knowing the 

statement was false. “[T]o insure the ascertainment and 

publication of the truth about public affairs, it is 

essential that the First Amendment protect some erroneous 

publications as well as true ones.” St. Amant, 390 U.S. at 

732. 

Additionally, Hartig stated in interrogatory answers 

that, before publishing the November 1, 2003 editorial, he 

had reviewed articles published by the Virginian-Pilot that 

quoted, among other things, the special grand jury’s 

conclusions that “the School Board did not regard financial 

oversight as part of its responsibilities” and that “the 

School Board and the superintendent bore the ultimate legal 

responsibility for the deficit.” As the circuit court 

correctly noted, without a fact in the record that would 

show Hartig had any reason to question the accuracy of the 

special grand jury’s recitation of facts, such as evidence 
17

showing he knew that witnesses before the special grand 

jury had perjured themselves, there is no basis for 

concluding that Hartig and Landmark had any serious doubt 

about the truth of their assertion that Jackson, despite 

his acquittal on the malfeasance charge, had some level of 

responsibility for the School Board’s budget deficit. See

St. Amant, 390 U.S. at 731 (evidence must show that the 

defendant in fact had serious doubts about the truth of his 

publication). 

 Equally unavailing is Jackson’s reference to Hartig’s 

alleged comment to him, saying Jackson “had to pay for the 

deficit.” This fact does not speak to Hartig’s state of 

mind at the time he published the editorial three days 

earlier. Moreover, this statement, at most, suggests that 

Hartig harbored some kind of ill will toward Jackson. 

While “it cannot be said that evidence concerning motive or 

care never bears any relation to the actual malice 

inquiry,” proof of a media defendant’s ill will toward a 

public figure plaintiff is, without more, insufficient to 

establish knowledge of falsity or reckless disregard for 

the truth. Harte-Hanks, 491 U.S. at 666, 668. 

 When, as in this case, allegedly defamatory statements 

discuss a candidate’s fitness for elective office, 
18

[t]he importance to the state and to society of 

such discussions is so vast, and the advantages 

derived are so great, that they more than 

counterbalance the inconvenience of private 

persons whose conduct may be involved, and 

occasional injury to the reputations of 

individuals must yield to the public welfare, 

although at times such injury may be great. 

Coleman v. MacLennan, 98 P. 281, 286 (Kan. 1908). “[T]here 

can be no doubt that discussion of public issues and debate 

on the qualifications of candidates for public office are 

integral to the operation of our system of government and 

are entitled to the broadest protection the First Amendment 

can afford.” Mahan v. National Conservative Political 

Action Comm., 227 Va. 330, 336, 315 S.E.2d 829, 833 (1984). 

CONCLUSION 

We conclude that the circuit court properly entered 

summary judgment for Hartig and Landmark. Summary judgment 

is appropriate when “no material facts are genuinely in 

dispute.” Klaiber, 266 Va. at 484, 587 S.E.2d at 558; see 

also Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 5, 82 

S.E.2d 588, 590 (1954) (summary judgment is appropriate 

“when it clearly appears that one of the parties is 

entitled to judgment within the framework of the case”). 

Our review of the record on the motion for summary judgment 

does not disclose any genuinely disputed material fact that 

would permit a reasonable fact finder to conclude that the 
19

defendants published, either with actual knowledge of 

falsity or subjective serious doubts as to truth, the 

statements in Hartig’s November 1, 2003 editorial asserting 

that Jackson, as a former School Board member, bore some 

degree of responsibility for the School Board’s budget 

deficit despite his acquittal on the malfeasance charge. 

The absence of such a fact is fatal to Jackson’s attempt to 

meet his constitutional burden of establishing that Hartig 

and Landmark published the allegedly defamatory statements 

with actual malice. Accordingly, we will affirm the 

circuit court’s judgment granting summary judgment in favor 

of Hartig and Landmark and dismissing Jackson’s motion for 

judgment with prejudice.4

Affirmed.

SENIOR JUSTICE RUSSELL, with whom JUSTICE LEMONS joins, 

dissenting. 

The majority opinion expresses well the law of libel 

that applies to this case. I part company only with the 

majority’s conclusion that the case was a proper subject 

for summary judgment. After setting forth the applicable 

law of libel, the majority opinion engages in a detailed 

 4

 In light of our decision, it is not necessary to 

address Jackson’s assignment of error challenging the 

circuit court’s decision to transfer venue. Venue is 
20

analysis of the facts, drawing inferences from them and 

reaching conclusions based upon them. In my view, the 

majority thereby invades the province of a jury, as the 

trial court had done. 

As the majority opinion states, Jackson, as a 

candidate for public office, had the burden of proving by 

clear and convincing evidence that the defendant published 

a defamatory falsehood touching upon his fitness for office 

that was motivated by “New York Times malice.” That term 

is correctly defined as a statement of fact made “with 

knowledge that it was false or with reckless disregard of 

whether it was false or not.” There was an abundance of 

evidence in the record from which a jury could have 

concluded that the defendants' publication met that 

standard. First, the defendants’ statement that Jackson 

had resigned his office (impliedly in disgrace) was 

demonstrably false. Second, the defendants knew of its 

falsity when the statement was made. The newspaper had 

actually published an editorial five years earlier 

commending Jackson as a “man of integrity” for his refusal 

to allow himself to be “bullied off the School Board by the 

commonwealth’s attorney.” Jackson was prepared to offer in 

 

concerned with the appropriate “place of trial,” Code 

§ 8.01-258, not the viability of a cause of action. 
21

evidence handwritten notes taken by Hartig and another 

member of the paper’s editorial board during an interview 

just prior to the defamatory publication showing that they 

knew that Jackson had served his full four-year term on the 

school board. From this evidence alone, a jury could have 

found that the defendants, when making the false 

statements, had a “high degree of subjective awareness of 

their probable falsity.” Nothing more is required to meet 

the test of “New York Times malice.” 

The issue of the defendants’ motivation and intent is 

one of fact for resolution by the jury, not one of law for 

determination by the court. 

 It is a court’s duty to decide as a matter 

of law whether a communication is privileged. 

But, the question whether a defendant was 

actuated by malice, and has abused the occasion 

and exceeded the privilege, is a question of fact 

for a jury. 

Fuste v. Riverside Healthcare Ass'n, 265 Va. 127, 135, 575 

S.E.2d 858, 863 (2003) (quoting Alexandria Gazette Corp. v. 

West, 198 Va. 154, 160, 93 S.E.2d 274, 279-80 (1956) 

(internal quotation marks omitted)). 

 The general rule, which has been repeatedly 

stated by this court, is that . . . the question 

of whether or not the defendant was actuated by 

malice and . . . exceeded his privilege [is a 

question] of fact for the jury. 

Alexandria Gazette, 198 Va. at 160, 93 S.E.2d at 279. 
22

 Because the issue of malice depends entirely upon a 

determination of the defendant’s motive and intent at the 

time of making an allegedly defamatory statement, summary 

judgment is singularly inappropriate. 

 [S]ummary judgment is seldom appropriate in 

cases wherein particular states of mind are 

decisive as elements of a claim or defense. This 

reflects a general perception that whether as a 

matter of fact any particular state of mind 

exists can seldom be considered to be beyond 

reasonable dispute because this depends entirely 

upon the conflicting inferences to be drawn from 

evidence so likely to be circumstantial or, if 

direct, self-serving. 

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th 

Cir. 1979). 

 Here, the defendants sought to justify their 

defamatory statements in 2003 by reliance on a report filed 

by a special grand jury in 1996. The trial court found as 

a fact that this reliance was justified, notwithstanding 

all the events of which the defendants were aware that 

occurred during the next seven years, and the majority 

opinion agrees. The majority opinion goes on to weigh the 

evidence upon which Jackson relied to establish the 

defendants’ knowledge of the falsity of their statements 

and their motivation in making them. A striking 

illustration of this appears where the majority opinion, 

after reviewing Jackson’s evidence in this regard, 
23

concludes: “Viewing these facts in the light most 

favorable to Jackson, we conclude that they are 

insufficient as a matter of law to establish clear and 

convincing evidence that Hartig and Landmark published the 

statements . . . with actual malice.” It was entirely 

within the province of a properly instructed jury, not of 

the court, to weigh that evidence and determine what had 

been proved by clear and convincing evidence. The majority 

opinion also flatly states: “Furthermore, the evidence in 

the record does not establish that Hartig knew, at the time 

he published the incorrect statement, . . . that the 

statement was untrue.” That weighing of the facts ignores 

Hartig’s notes taken at his interview with Jackson just 

before the statements were published, which showed the 

exact opposite. A jury, had it been permitted to weigh the 

evidence, might have reached a very different conclusion. 

 Summary judgment is a drastic remedy, available only 

where there is no material fact genuinely in dispute. It 

has the effect of short-circuiting the trial and cutting 

off the right of the parties to a trial by jury. Unknown 

at common law, it applies only to cases in which no trial 

is necessary because no evidence could affect the result. 

Shevel’s, Inc. v. Southeastern Assocs., Inc., 228 Va. 175, 
24

181, 320 S.E.2d 339, 342-43 (1984). In my view, this case 

falls far outside that category. 

The constitutional guarantees of freedom of the press 

and freedom of speech are indeed fundamental to the ordered 

liberty of our people, but the constitutional right to 

trial by jury is no less so. Article I, Section 11 of the 

Constitution of Virginia provides, in pertinent part: 

“That in controversies respecting property, and in suits 

between man and man, trial by jury is preferable to any 

other, and ought to be held sacred.” That provision, 

attributed to George Mason, has as much vitality in 

Virginia today as it did in 1776, when it became a part of 

our original constitution. See Bethel Investment Co. v. 

City of Hampton, 272 Va. 765, 769 n.2, 636 S.E.2d 466, 469 

n.2 (2006). 

In this case, the motive and intent of the defendants 

in publishing the allegedly defamatory editorial is an 

issue essential to a finding of the presence or absence of 

“New York Times malice.” That issue turns on material 

facts, which in this case are genuinely in dispute. There 

was evidence in the record from which reasonable minds 

could draw differing conclusions as to those disputed 

facts. Jackson had a constitutional right to submit that 

dispute to a jury. 
25

Because I think the majority opinion erroneously 

deprives Jackson of that right, I respectfully dissent.