The American Civil Liberties Union of Virginia, representing Jalane Schmidt, a local activist and University associate professor of religious studies, filed a demurrer on July 22 to dismiss a defamation lawsuit brought by Edward Dickinson Tayloe II in late May.
Tayloe is one of the 13 plaintiffs suing the five Charlottesville City Councilors who voted to remove local Confederate monuments in 2017.
Schmidt is well-known in the world of Charlottesville activism for making history accessible to those outside of academia. She leads walking tours of downtown Charlottesville’s Confederate monuments, regularly attends City Council meetings and organized a civil rights pilgrimage to Montgomery, Ala. in July 2018.
The suit — which also names Lisa Provence, reporter at C-Ville Weekly, and C-Ville Holdings, LLC as defendants — seeks nearly $2 million in damages. It concerns a March 6 C-Ville Weekly article titled, “The plaintiffs: Who’s who in the fight to keep Confederate monuments.” The article, written by Provence, profiles the 13 plaintiffs in the Monument Fund v. Charlottesville case.
Tayloe claims his profile conveys defamatory implications, insinuations and inferences — namely that Tayloe is a racist who seeks “to antagonize people of color.”
The piece detailed Tayloe’s ancestral ties to slavery and the 1960 decision to raze Vinegar Hill — a then-thriving African American community located on what is now the Downtown Mall. In the profile, Schmidt is quoted as saying that “for generations this family has been roiling the lives of black people, and this is what [plaintiff Tayloe] decides to pursue.”
The article also quotes Schmidt to describe the Monument Fund plaintiffs as “the bow tie, upscale people tied to the League of the South people who want to secede and are slavery apologists.”
In response to Tayloe’s complaint, attorneys representing Provence, C-Ville Holdings and Schmidt are asking a Charlottesville judge to dismiss the suit, arguing that Schmidt’s comments “lie at the very heart of the First Amendment’s protections.”
Why the ACLU is involved
Eden Heilman, the ACLU-VA attorney representing Schmidt, said the ACLU picked up the case due to its implications for free speech.
“[The suit] is a situation where you have a pretty decent power imbalance between two parties — one of whom is a University professor who is opining as a local community activist and who's opining on issues in her community,” Heilman said. “Then you have somebody that's basically trying to use the defamation lawsuit to silence her. We felt that that was an important issue that we get involved in.”
University Spokesperson Wes Hester said in an email to The Cavalier Daily that the University initially sought authority to represent Schmidt. However, the Virginia Department of Risk Management determined the defamation case fell outside of the scope of Schmidt’s employment, which meant the University, a state agency, could not directly represent her.
“Once the University learned of this decision, the University Counsel’s Office turned to several external legal sources with defamation experience in an effort to help secure representation for her,” Hester said. “We presented Professor Schmidt with these external representation options, and she retained the ACLU as her counsel in the defamation suit.”
Although not representing her, the University maintains its support for Schmidt as she navigates the lawsuit. In a June email, Dean of Arts and Sciences Ian Baucoum expressed “unwavering support for the free speech rights of faculty and reaffirmed the value of faculty engagement with issues of public concern.”
Free speech at stake
According to Heilman, the argument to dismiss the complaint is based on two grounds — that Tayloe’s complaint doesn’t meet the basic requirements for a defamation lawsuit and is prohibited under Virginia Anti-SLAPP statutes. To successfully claim defamation, a plaintiff must at minimum demonstrate “(1) publication of a (2) an actionable statement with (3) the requisite intent.” Heilman said Tayloe’s complaint fails to articulate why Schmidt’s statements are defamatory, noting that Schmidt’s statements are clearly those of opinion — a well-protected category of speech.
Meanwhile, A SLAPP — or strategic lawsuit against public participation — is a lawsuit designed to silence and burden defendants through financial liability and attorney’s fees. Jay Brown, the attorney representing Provence, said Tayloe’s lawsuit is exactly that which Virginia’s anti-SLAPP statute seeks to prevent.
“This is precisely the kind of circumstance that ... the anti-SLAPP statute was intended for — a discussion in a public forum, a newspaper, by a commentator about a significant public controversy, and where everyone involved believed at the time and believes now with the facts that they reported are true,” Brown said.
The ALCU’s court filing further argues that Tayloe is a limited public figure — meaning that Tayloe must prove Schmidt’s statements were made with actual malice in order to win the suit. According to Heilman, he can’t meet that standard.
Even if the court finds Tayloe to be a private figure, the filing maintains that Schmidt’s statements couldn’t even be considered negligent, as she believes her statements are true.
“Tayloe’s lawsuit against me not only fails to meet the legal requirements for a defamation case, it is also a disdainful attempt to stifle speech and prevent me from speaking out about matters of public concern,” Schmidt said in a statement on the ACLU website.
From here, the judge may deny the demurrer, or sustain it with or without prejudice. If the demurrer is overruled, Schmidt, Provence and C-VILLE must file an answer to Tayloe’s complaint. However, if the judge grants the demurrer without prejudice, Tayloe may correct his complaint before refiling. Sustaining the demurrer with prejudice effectively drops case, as Tayloe may not amend and refile his complaint.
The attorneys representing Tayloe at Tremblay & Smith, PLLC declined a request for comment.
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