From Pestrak v. Sawyers, decided last week by the Virginia Court of Appeals (Judge Vernida Chaney, joined by Judges Frank Friedman and Stuart Raphael):
In December 2017, Petrak, who led the “Prince William Committee (PWC) for Quality Education” and had previously pursued recall efforts to oust Sawyers from his Chairman position, publicly responded to a prior 2014 comment made by Sawyers on Facebook. Sawyers had commented on a local librarian’s public photograph, referring to her as “[s]uch a LILF.” {Sawyers did not dispute that he called the librarian “such a LILF.” Petrak maintains the acronym referred to a distasteful innuendo. However, Sawyers testified that LILF meant “Librarian I’d Like to Fund.”}
In response, Petrak posted in the public Facebook group, “PWC Education Reform,” sharing a series of statements calling Sawyers a “SEXUAL PREDATOR/HARASSER.” These statements were accompanied by screenshots of Sawyers’s LILF comment, a tweet in which Sawyers thanked Senator Al Franken, and a photograph of Franken engaging in inappropriate conduct.
Petrak’s comment reads as follows:
Since our School Board Chairman-at-Large continues to paint false pictures of people with social media, I thought I would share some real disturbing (and truthful) pictures about Ryan Sawyers.
The first picture is of a wom[a]n who posted a professional picture of herself on Facebook. As you can see, her friends made nice comments about the picture. Look closely and see the comment by Ryan Sawyers. It says, “such a LILF[.]” I am told this person is a librarian. So basically, Ryan Sawyers, a married man, is publicly saying on social media that he would like to have sex with this woman. If that isn’t the behavior of a SEXUAL PREDATOR or HARASSER, I don’t know what is.
The second picture is a tweet from Ryan Sawyers thanking Senator Al Franken, another SEXUAL PREDATOR for campaigning in Virginia.
The third picture is of Al Franken groping a sleeping woman on a military transport plane.
Can you see the connection here? So our School Board Chairman-at-Large, Ryan Sawyers is an open serving SEXUAL PREDATOR/HARASSER. Do you see any problem with this?
Instead of attacking people with false narratives on social media, he should be removing himself from public office and you should be demanding it.
So to recap, we have a SEXUAL PREDATOR/HARASSER chairing our school board.
Let’s see if anyone is willing to defend this SEXUAL PREDATOR/HARASSER. I’m sure Mr. Sawyers and his minions will try to turn this around and make this about me … it’s how they roll.
Sawyers sued for defamation, and the jury awarded $1M in damages. But the appellate court concluded that the claim should have been thrown out:
Because opinions cannot be “objectively characterized as true or false,” they are generally non-actionable…. [T]he First Amendment protects statements of opinion based on disclosed or assumed non-defamatory facts….
First, Petrak’s Facebook post fully discloses the factual predicates underlying his opinions: Sawyers’s Facebook comment calling the librarian “[s]uch a LILF,” his tweet thanking Senator Al Franken, and the photograph of Al Franken groping a sleeping woman. Petrak lays out all the facts that form his opinion, and the record shows that he relied on no unknown or undisclosed facts. {[T]he record establishes that the readers of the Facebook post were aware of an underlying political dispute between the parties. Sawyers attached the entirety of Petrak’s post as an exhibit to his complaint. The unredacted post begins with a disclosure that Petrak led an effort to gather signatures to recall Sawyers from his school board position. Petrak’s post itself therefore provides the complete factual basis for his conclusion, including the political tension between the parties, eliminating any suggestion of undisclosed support. We note that, unlike Schaecher, the underlying political dispute or situation here is far removed from the content or topic of sexual misconduct or innuendos. However, this difference is not dispositive when there is no indication in the record that Petrak relied on undisclosed facts.
To the extent that Petrak and Sawyers were engaged in a broader political disagreement regarding education reform, that context alone also does not create a topically relevant undisclosed factual predicate. The post appeared in a Facebook group entitled “PWC Education Reform,” where members could reasonably be expected to possess some knowledge of an underlying education reform dispute. In any event, Petrak’s post discloses the full set of facts he relied on and, in itself, establishes the necessary familiarity with the situation for readers.}
The alleged defamatory dispute involves Petrak’s labeling of Sawyers as a sexual predator or harasser. Petrak’s conclusion is explicitly based on the three disclosed facts, providing readers with the necessary context to evaluate his claims independently. As in Schaecher, the audience had the requisite information or knowledge of the factual basis for Petrak’s conclusions to determine whether the accusations are perceived as pure opinion based on his subjective analysis.
Second, Petrak’s opinion, drawn from these disclosed facts, cannot support liability in the absence of falsity in the underlying facts. Sawyers, like the plaintiff in Schaecher, did not allege that the underlying factual statements were false. Therefore, Petrak’s post is a non-actionable opinion. Sawyers acknowledges making the LILF comment, that the images depict Al Franken’s incident, and that he thanked Al Franken on Twitter. His testimony about the meaning of “LILF” offers an alternative interpretation. However, it does not challenge the factual existence of the comment or tweet. Nor does it claim that the underlying facts are defamatory. The dispute, therefore, lies only in Petrak’s interpretation and assessment of the fully disclosed facts, which is non-actionable opinion.
Third, a reader of the Facebook post, like the email recipients in Schaecher, could reasonably conclude that Petrak’s comments characterizing Sawyers as a “SEXUAL PREDATOR/HARASSER” constituted his subjective analysis. {The record shows that readers of Petrak’s post interpreted his comments and conclusions as his subjective personal opinion rather than literal statements of fact. Several responses to the post illustrate this perception: readers described Petrak’s characterization of Sawyers as a sexual predator as a “stretch,” cautioned against making light of the term, and noted that the underlying comments or images did not constitute evidence of predatory behavior. These responses suggest that those readers did not believe the language carrying the alleged defamatory sting to be true but instead viewed it as Petrak’s subjective assessment drawn from the disclosed facts. This supports our conclusion that a reasonable reader could perceive Petrak’s remarks as subjective commentary rather than independently verifiable factual assertions.} Petrak guides the reader sequentially through each disclosed fact. He signals the subjective nature of his reasoning with phrases like, “If that isn’t the behavior of a SEXUAL PREDATOR/HARASSER, I don’t know what is.”
Even the more provocative phrase, “Ryan Sawyers is an open serving SEXUAL PREDATOR/HARASSER,” appears within a contextual narrative that ties directly back to the disclosed facts and is introduced by the word “So.” Viewed in isolation, that statement might be interpreted as factual. In context, however, it forms part of a larger narrative expressing Petrak’s personal assessment or interpretation of the disclosed facts. The language leading into that phrase illustrates the point:
The second picture is a tweet from Ryan Sawyers thanking Senator Al Franken, another SEXUAL PREDATOR for campaigning in Virginia. The third picture is of Al Franken groping a sleeping woman …. Can you see the connection here? So our School Board Chairman-at-Large … is an open serving SEXUAL PREDATOR/HARASSER.
By presenting the two photographs and then using the word “So,” Petrak appears to be drawing his opinion or inference directly from his perceived connection between the tweet and the pictures. By layering facts and reasoning in a step-by-step manner, as Petrak does throughout his post, he helps the reader understand the basis for his conclusion and reasonably perceive the post as Petrak’s subjective analysis based on the facts he disclosed.
{Nothing in our holding is intended to conclude that the phrase “sexual predator” can never be considered defamation per se. In another context, this phrase may constitute defamation, but that situation is not currently the one before this Court.}
Lee E. Berlik and R. Jackson Martin represent plaintiff.
