PRESENT:   All the Justices

JEFFREY W. THARPE, ET AL.
                                              OPINION BY
v.   Record No. 120985              JUSTICE ELIZABETH A. MCCLANAHAN
                                           FEBRUARY 28, 2013
J. HARMAN SAUNDERS, ET AL.

             FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                     Theodore J. Markow, Judge

      In this defamation case, Jeffrey W. Tharpe ("Tharpe") and

Shearin Construction, Inc. ("Shearin"), appeal from the judgment

of the circuit court sustaining the demurrer filed by J. Harman

Saunders ("Saunders") and J. Harman Saunders Construction, Inc.

("Saunders Construction").     Because we find the circuit court

erred in ruling that the alleged defamatory statement

constituted an expression of opinion, we will reverse the

circuit court's judgment.

                              I. BACKGROUND

      Since this case was decided below on demurrer, we accept as

true the well-pleaded facts sets forth in the amended complaint

and all inferences fairly drawn therefrom.      Hawthorn v. City of

Richmond, 253 Va. 283, 284-85, 484 S.E.2d 603, 604 (1997); Russo

v. White, 241 Va. 23, 24, 400 S.E.2d 160, 161 (1991).

      Shearin, acting through its agent, Tharpe, contracted with

the United States government to perform excavation work at Fort

Pickett.   During the excavation, Shearin encountered rock and

entered into a change order for compensation above the amount of
the original contract price upon the basis that encountering the

rock was a changed condition.   Subsequently, Shearin, also

acting through Tharpe, contracted with the Southside Regional

Service Authority (the Authority) to perform excavation work at

Butcher's Creek Landfill in Mecklenburg County.   A dispute arose

between Shearin and the Authority after Shearin encountered rock

during the excavation and requested a change order for

compensation above the original contract price.

     Saunders, owner and operator of Saunders Construction, a

business competitor of Shearin, allegedly made the following

statement to Wayne Carter, the Mecklenburg County Administrator

and the Authority's Executive Director: "Tharpe told me that

Tharpe was going to screw the Authority like he did Fort

Pickett."   This statement was allegedly made again by Saunders

to Carter and another named individual, then repeated and

republished by and to the Authority, people of the community,

and the news media.   Tharpe and Shearin assert that Tharpe never

told Saunders "[he] was going to screw the Authority like he did

Fort Pickett" and, therefore, such statement is false.   They

further assert that Saunders made the statement knowing it to be

false, or in reckless disregard of whether it was false, because

of personal spite, hatred, ill will, or a desire to hurt the

business reputation of Tharpe and Shearin.



                                 2
     Tharpe and Shearin contend that the "clear meaning" of the

statement as understood by the Authority, the community, and the

general public "was that Tharpe, acting as agent for Shearin,

intended to screw 1 the Authority by making a[n] unjustified

change order request as a result of encountering rock on the

Authority Project" and "that Tharpe, acting as agent for

Shearin, previously screwed the United States, who contracted

for the Fort Pickett Project, by making an unjustified change

order request as a result of encountering rock on the Fort

Pickett Project."   Thus, Tharpe and Shearin contend that the

words in the statement "in their normal usage" were understood

by the Authority, the community, and the general public "to harm

Tharpe's and Shearin's business reputation."

     It is further alleged that as a "direct and proximate

cause" of the statement, the Authority filed suit alleging fraud

against Tharpe and Shearin causing them to incur "significant




     1
       Tharpe and Shearin contend that the "the word 'screw' as
used in the [s]tatement . . . means to unfairly take advantage
of another or to act dishonestly in the transaction of business"
and that "the word 'screw' was so understood by the Authority,
people of the community, and the general public." Cf. Webster's
Third New International Dictionary 2041 (1993)("to oppress or
dispossess by unreasonable or extortionate actions or
conditions" or "to extract by pressure of threat"); Oxford
English Dictionary (2d ed. 1989, rev. online ed. Dec. 2012),
http://www.oed.com/view/entry/173460 (last visited Feb. 6,
2013)("[t]o defraud (a person, esp[ecially] of money), to cheat;
to deceive").
                                 3
attorneys' fees."   Additionally, Shearin has not been invited to

"submit bids on several large construction projects," "the

business reputations of Tharpe and Shearin have been severely

and permanently damaged," and Tharpe and Shearin "have been and

will continue to be financially harmed."

     In this present defamation suit filed by Tharpe and

Shearin, Saunders and Saunders Construction demurred to the

amended complaint on the ground that the statement allegedly

made by Saunders did not contain a provably false statement, but

was an expression of opinion. 2   The circuit court agreed,

explaining that "[w]hether the quoted statement was made or not

is certainly factual subject to being disproved," but "the basis

for the claim of defamation is not dependent upon that fact."

The circuit court reasoned that the claim of defamation is

dependent on the ability to prove that Tharpe was going to

"screw" the Authority and that Tharpe had "screwed" Fort

Pickett.   According to the circuit court, because what is meant

by the word "screw" is dependent upon the speaker's viewpoint,

the alleged defamatory statement was an expression of opinion.




     2
       Although the demurrer contained several alternative
grounds for dismissal, the only issue addressed by the circuit
court, which it found dispositive, was whether the alleged
defamatory statement was an expression of opinion. Accordingly,
this is the only issue before us on appeal.
                                  4
                           II. ANALYSIS

      On appeal, Tharpe and Shearin argue that the circuit court

erred in holding that the alleged defamatory statement by

Saunders that "Tharpe told me that Tharpe was going to screw the

Authority like he did Fort Pickett" was an expression of

opinion.

      The elements of defamation are "(1) publication of (2) an

actionable statement with (3) the requisite intent."      Jordan v.

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

actionable, the statement must be both false and defamatory."

Id.   "Causes of action for defamation have their basis in state

common law but are subject to principles of freedom of speech

arising under the First Amendment to the 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 First Amendment to the Federal Constitution
      and article 1, section 12 of the Constitution of
      Virginia protect the right of the people to
      teach, preach, write, or speak any such opinion,
      however ill-founded, without inhibition by
      actions for libel and slander. "[E]rror of
      opinion may be tolerated where reason is left
      free to combat it." Thomas Jefferson's First
      Inaugural Address (1801). "However pernicious an
      opinion may see[m], we depend for its correction
      not on the conscience of judges and juries but on
      the competition of other ideas." Gertz v. Robert
      Welch, Inc., 418 U.S. 323, 339-40 (1974).



                                 5
Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d 97, 102 (1985).

"But there is no constitutional value in false statements of

fact."    Gertz, 418 U.S. at 340.

     Accordingly, "pure expressions of opinion" are

constitutionally protected and "cannot form the basis of a

defamation action."    Williams v. Garraghty, 249 Va. 224, 233,

455 S.E.2d 209, 215 (1995).    "Statements that are relative in

nature and depend largely upon the speaker's viewpoint are

expressions of opinion."    Fuste v. Riverside Healthcare Ass'n,

265 Va. 127, 132, 575 S.E.2d 858, 861 (2003).    Furthermore,

"[s]peech that does not contain a provably false factual

connotation" is generally considered " 'pure expression[] of

opinion.' "     WJLA-TV v. Levin, 264 Va. 140, 156, 564 S.E.2d 383,

392 (2002). 3

     "Whether an alleged defamatory statement is one of fact or

of opinion is a question of law to be resolved by the trial

court."   Id. at 156-57, 564 S.E.2d at 392; Tronfeld v.



     3
       "While pure expressions of opinion are not actionable,
'[f]actual statements made to support or justify an opinion
. . . can form the basis of an action for defamation.' "
Raytheon Tech. Servs. Co. v. Hyland, 273 Va. 292, 303, 641
S.E.2d 84, 90 (2007) (quoting Williams, 249 Va. at 233, 455
S.E.2d at 215). Because "expressions of 'opinion' may often
imply an assertion of objective fact," the United States Supreme
Court has refused to "create a wholesale defamation exemption
for anything that might be labeled 'opinion.' " Milkovich v.
Lorain Journal Co., 497 U.S. 1, 18 (1990); see also Raytheon,
273 Va. at 303, 641 S.E.2d at 91.
                                    6
Nationwide Mut. Ins. Co., 272 Va. 709, 714, 636 S.E.2d 447, 450

(2006); Fuste, 265 Va. at 132-33, 575 S.E.2d at 861.      Because

this determination is an issue of law, we conduct a de novo

review of the statement in question.   Raytheon, 273 Va. at 304,

641 S.E.2d at 91.   In conducting our review, we do not determine

whether the alleged defamatory statement is true or false, but

whether it is capable of being proved true or false.      Id.

     Applying these principles, Saunders' statement that "Tharpe

told me that Tharpe was going to screw the Authority like he did

Fort Pickett" is indisputably capable of being proven true or

false.   The statement can be disproved by evidence, if adduced,

that Tharpe did not tell Saunders he "was going to screw the

Authority like he did Fort Pickett."   It is neither an

expression of Saunders' opinion that Tharpe made this statement

to Saunders, nor is it dependent on Saunders' viewpoint.        See,

e.g., Tronfeld, 272 Va. at 715-16, 636 S.E.2d at 451. 4    For that

reason, the constitutional right to speak opinion "without

inhibition by actions for libel and slander" is not implicated




     4
       To illustrate this point further, if it were alleged
instead that Saunders said "Tharpe is going to screw the
Authority like he did Fort Pickett," one might argue that such a
statement by Saunders is an expression of Saunders' opinion or
dependent on his viewpoint. In contrast, the allegation in this
case is that Saunders made a false statement of fact – that
Tharpe said he was going to "screw" the Authority like he did
Fort Pickett.
                                 7
since it is Saunders' alleged false statement of fact, not any

expression of his opinion, that subjects him to potential

liability.   Chaves, 230 Va. at 119, 335 S.E.2d at 102.

     Although the circuit court recognized that "[w]hether the

quoted statement was made or not is certainly factual subject to

being disproved," it nevertheless required that the statement

attributed to Tharpe by Saunders also contain a provably false

connotation.   However, Tharpe's and Shearin's claims of

defamation are based solely on the false attribution to Tharpe

of the quoted statement, which he denies having spoken, not the

falsity of the assertion contained within that alleged

statement.

     [R]egardless of the truth or falsity of the
     factual matters asserted within the quoted
     statement, [a false] attribution may result in
     injury to reputation because the manner of
     expression or even the fact that the statement
     was made indicates a negative personal trait or
     an attitude the speaker does not hold.

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511 (1991)

(emphasis added). 5   The gravamen of the amended complaint is that




     5
       In fact, "[a] self-condemnatory quotation may carry
more force than criticism by another." Masson, 501 U.S.
at 512. As the Supreme Court noted,
     [i]t is against self-interest to admit one's own
     criminal liability, arrogance, or lack of integrity,
     and so all the more easy to credit when it happens.
     This principle underlies the elemental rule of
     evidence which permits the introduction of
                                  8
Saunders allegedly attributed a fabricated quotation to Tharpe

that, as a quotation, caused injury to the reputations of Tharpe

and Shearin.    Such allegations give rise to a claim of

defamation regardless of the truth or falsity of the matters

asserted in the statement allegedly attributed to Tharpe or

whether such assertions are fact or opinion.    Id. at 511-12

(where a public-figure psychoanalyst was falsely quoted as

stating he was "the greatest analyst who ever lived," the Court

explained that "one need not determine whether [he] is or is not

the greatest analyst who ever lived in order to determine that

it might have injured his reputation to be reported as having so

proclaimed").

     Although we have not previously addressed fabricated

quotations, other jurisdictions have recognized that quotations

falsely attributed to a plaintiff are actionable as defamation

regardless of the truth or falsity of the substance of the

quotation when it injures the plaintiff's reputation.      See,

e.g., Levesque v. Doocy, 560 F.3d 82, 89-90 (1st Cir. 2009)

(false attribution of comments to plaintiff encouraged listeners



     statements against interest, despite their hearsay
     character, because we assume "that persons do not
     make statements which are damaging to themselves
     unless satisfied for good reason that they are
     true."
Id. at 512 (quoting Advisory Committee's Notes on Fed.
Rule Evid. 804(b)(3), 28 U.S.C. App., p. 789).
                                  9
to form negative conclusions about plaintiff tending to harm his

reputation); Kerby v. Hal Roach Studios, Inc., 127 P.2d 577, 581

(Cal. Dist. Ct. App. 1942) (defamation may be accomplished by

falsely putting words into the mouth of the person defamed and

imputing to such person a willingness to use them "where the

mere fact of having uttered or used the words" would produce

harm to plaintiff's reputation); Selleck v. Globe Int’l, Inc.,

212 Cal. Rptr. 838, 845 (Cal. Ct. App. 1985) (article containing

both direct and indirect quotations of statements made by

plaintiff imputing a betrayal of his son "[did] not merely

express defendant's opinion that plaintiff made statements about

his son" but "assert[ed] as a fact that plaintiff made the

statements”); Schmalenberg v. Tacoma News, Inc., 943 P.2d 350,

357 (Wash. Ct. App. 1997) (a statement may be provably false

because it is falsely attributed to a person who did not make it

even if the matter asserted in the statement is true). 6




     6
       In Schmalenberg, the court recognized at least three ways
in which a statement may be provably false: because it falsely
represents the state of mind of the person making it, because it
is falsely attributed to a person who did not make it, or
because the assertion made within the statement is false.
     Thus, if Doe says, "I think Smith said that Jones
     lied about the accident," the statement may be false
     (a) because Doe does not really think that Smith
     said Jones lied about the accident; (b) because
     Smith did not say that Jones lied about the
     accident, even though Jones did; or (c) because
                                10
     Similarly, Tharpe's and Shearin's claims are not dependent

on the ability to prove that Tharpe was going to "screw" the

Authority and that Tharpe had "screwed" Fort Pickett.    It is

irrelevant to their claims whether these assertions are capable

of being proven false.   Rather, Saunders' statement of fact –

"Tharpe told me that Tharpe was going to screw the Authority

like he did Fort Pickett" – if believed by the hearer as coming

from Tharpe, by its very nature is alleged to have defamed

Tharpe and Shearin.   Therefore, regardless of the truth or

falsity of the matters asserted in the quote attributed to

Tharpe, Saunders' statement is an actionable statement of fact.

                          III. CONCLUSION

     In sum, we hold the circuit court erred in ruling the

alleged defamatory statement was an expression of opinion and in

sustaining the demurrer on that ground.     Accordingly, we will

reverse the circuit court's judgment and remand for further

proceedings.

                                              Reversed and remanded.




     Jones did not lie about the way in which the
     accident happened.
Schmalenberg, 943 P.2d at 357.
                                 11
