Almost exactly two months after the story came out, Tayloe took his revenge. He sued all three — the paper, the reporter and the professor — for defamation, demanding more than $1 million in damages.
By referring to his family’s slaveholding past in a story about Tayloe’s fight to preserve the monuments, Tayloe’s lawyers argued, the C-Ville Weekly and Schmidt implied their client was a racist. The fallout caused Tayloe to suffer “humiliation” and “emotional distress,” among other things, the lawyers wrote in court documents.
“The Profile damaged Plaintiff Tayloe’s personal and professional reputation by alleging … Tayloe opposed [removing the monuments] because he is a racist and an opponent of people of color,” reads the complaint, filed this May in Virginia circuit court.
Some legal experts reached by The Washington Post said Tayloe’s defamation claim is far-fetched and unlikely to succeed in court. Others cautioned it is too soon to know. The defendants have filed a motion to dismiss the suit — spurring Tayloe to file an opposition brief — and attorneys for both sides are set to make oral arguments before a judge in late October.
No matter how the case proceeds, experts said, two things are clear: It is probably the first of its kind in the United States. If not unprecedented, it’s certainly unusual to contend the revelation of details about slaveholding ancestors constitutes defamation, law professors said.
Second, it’s probably going to happen again. Soon.
Tayloe’s lawyers declined to comment on their client’s behalf. The C-Ville Weekly and Provence also declined to comment. Schmidt’s attorney Eden Heilman — the legal director for the American Civil Liberties Union of Virginia, which is undertaking Schmidt’s case pro bono — said she is optimistic her client will win.
“I am very confident that the defamation pieces of his argument are not presented adequately for the case to go through, and we are extremely hopeful that the court agrees,” Heilman said.
“It seems that as a society we’re currently revisiting our history of slavery,” said Evan Mascagni, political director for the Public Participation Project, a nonprofit group that advocates for First Amendment rights. “As more and more information comes to light … I think we will see a rise in lawsuits targeting those who are drawing attention to that family history.”
He added: “I think this is the beginning.”
For Tayloe, the saga started when Charlottesville’s City Council voted in 2017 to remove statues of Gens. Robert E. Lee and Thomas “Stonewall” Jackson from the city’s downtown area.
He and 12 others soon filed a lawsuit to bar removal — a few months before the memorials served as the site of the white supremacist “Unite the Right” rally that left one woman dead. Undeterred, Tayloe and his fellow plaintiffs pressed forward. This month a Virginia judge ruled taking down the monuments would violate historic preservation laws.
The triumph may have been less than total for Tayloe. The C-Ville Weekly profile was still online — as it is today.
The story, published online March 6, is unsparing in its depiction of his family’s deep ties to the slave trade. The Tayloes built a massive fortune by operating several cotton plantations — including, at one point, at least seven in Alabama — manned by enslaved laborers, the C-Ville Weekly reported.
Though the international slave trade became illegal in the early 1800s, the family continued to mint money partly by engaging in the domestic version, according to the C-Ville Weekly.
The Tayloes forced hundreds of enslaved people “to walk 800 miles to Alabama, where most were sold,” the C-Ville Weekly reported.
Provence tried to contact Tayloe for the story, according to the article, but was referred to a cousin, who told her the “vast majority of my Virginia family are against Confederate monuments.” The reporter also chatted with Schmidt, who leads free historical tours of Charlottesville’s Confederate statues every month.
“For generations this family has been roiling the lives of black people, and this is what [Plaintiff Tayloe] chooses to pursue,” Schmidt told Provence, referencing the monuments lawsuit.
Taken together, Tayloe’s lawsuit alleges, the framing and the quote did irreparable harm to his standing in Charlottesville, where he’s lived since 1958.
Tayloe grew up in the area, according to the suit, graduating from a local high school before enlisting and serving in the Vietnam War, during which he received the Bronze Star for valor. Later, after earning a bachelor of science degree from East Carolina University and studying finance in New York, he returned to Virginia and spent roughly 30 years working as a “stockbroker, trust investment officer, and financial planner,” the suit says.
The suit alleges that the article destroyed decades of goodwill built up with clients and neighbors by falsely insinuating that Tayloe is “a racist” who joined the monuments lawsuit to “antagonize people of color.” The story also implied he — like his ancestors — generally hopes to “roil the lives of black people,” according to the suit.
Tayloe, the suit says, “has condemned racism for his entire life, and does so now.”
Lawyers for the C-Ville Weekly and Schmidt contend this argument is nonsense. In a court filing, the paper argued the article contains “no defamatory matter” because it merely states accurate facts about Tayloe’s family background, before quoting Schmidt’s personal view on the matter. (Tayloe does not contest the story’s factual accuracy in the lawsuit, instead challenging what he views as the article’s implications.)
Heilman, the ACLU lawyer, said in a phone interview that opinions — including the one her client shared with the C-Ville Weekly — “cannot be defamatory as a matter of law.”
“Professor Schmidt is stating her opinion about someone who is participating in a piece of litigation,” Heilman said. “That’s protected by the First Amendment.”
That line of argument is likely to be effective in court, said Eugene Volokh, a professor at the University of California at Los Angeles who studies defamation cases.
In Virginia, as in most states, proving defamation requires establishing that someone made a false factual assertion that causes harm to another person’s reputation — a statement that “exposes this person to public hostility … scorn, ridicule, contempt,” Volokh said. The newspaper article does not meet this standard, according to Volokh, who predicted the judge will dismiss the case.
“[Tayloe] will lose, and he ought to lose,” said Volokh, who said he had never encountered a suit like Tayloe’s before.
Deborah R. Gerhardt, a law professor at the University of North Carolina, also said the suit was a novelty. But she was less certain of Tayloe’s immediate defeat: “There is a case to be made for the judge dismissing it, but I wouldn’t put money on it,” she said.
Gerhardt added that the case probably will serve as an important test of a new kind of law Virginia passed in recent years that aims to protect residents’ First Amendment rights. That statute, known colloquially as “anti-SLAPP legislation,” says people are not legally liable — and cannot face defamation claims — for anything they say that is protected under the right to free speech granted by the First Amendment.
SLAPP stands for “Strategic Lawsuit Against Public Participation.” Virginia, which updated its anti-SLAPP law in 2017, is one of 29 states to pass anti-SLAPP legislation since the idea was popularized by two law school professors in the late 1980s.
Given that Virginia’s version is nearly brand-new, Gerhardt said, the Tayloe case could set an influential precedent.
“The purpose of the anti-SLAPP legislation is to protect people who are exercising their right to free expression,” Gerhardt said. “So it was designed exactly for the types of people that could be sued in this case.”
Heilman and other ACLU lawyers have alleged that Tayloe’s lawsuit counts as a SLAPP suit in court documents. She said the chance to chart the course of SLAPP legal history in Virginia is partly what attracted the ACLU to the case.
“But most importantly, defamation cases like this have the potential to really, really chill free speech,” she said. “That is highly concerning to us — now more than ever.”