On July 1, 2017, a new Virginia law commonly referred to as its “anti-SLAPP” statute went into effect. Anti-SLAPP statutes are laws designed to make it easier to obtain quick dismissals of frivolous lawsuits brought to punish someone for expressing a repugnant idea or to discourage others from expressing those ideas. Defamation law and the First Amendment often go head-to-head in the situation where a speaker defames the character of another individual in the course of speaking out on an issue of public concern. Virginia’s anti-SLAPP statute basically says that when this occurs, the First Amendment should be given greater weight, and the speaker should not be held liable in a defamation action unless the statements were made with actual or constructive malice. If a person, acting in good faith, mistakenly gets some facts wrong when speaking out on a matter of public interest, that person is entitled to immunity under the statute, and may be entitled to reimbursement of legal fees if forced to defend against a libel or slander lawsuit. One question that the statute does not answer, however, is this: When, exactly, does it kick in? Can it be applied retroactively? In other words, does it apply to defamation actions based on statements made prior to July 1, 2017?

The answer largely depends on whether the anti-SLAPP statute is treated as “substantive” or “procedural” in nature. By definition, substantive laws involve the creation of duties, rights, and obligations, whereas procedural laws are those that control only the method of obtaining redress or enforcement of rights. (See Harris v. DiMattina, 250 Va. 306 (1995)). Under Section 8.01-1 of the Virginia Code, all Virginia statutes are to be given effect even if the cause of action arose prior to the effective date of a new law, but courts retain authority to disregard a new law in such instances if the new law would “materially change the substantive rights of a party (as distinguished from the procedural aspects of the remedy)” or would cause a miscarriage of justice.

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The First Amendment to the United States Constitution protects the right to express one’s opinions without fear of defamation lawsuits or other punishment. If you had a bad experience at a local restaurant, you are free to post a negative review on Yelp, Google, or some other consumer-review site and tell the world exactly what you think of the place. The restaurant may not appreciate the effect of your review on its average “star rating,” but it won’t be able to sue you for defamation (not successfully, anyway) if all you did was express your constitutionally-protected opinions. But what are those, exactly?

Distinguishing opinions from statements of fact is not as simple as it sounds, and in many cases, judges and scholars will reach opposite conclusions. For example, a common accusation that gets thrown around a lot is “scam artist” or “scammer.” Is that a factual assertion or an opinion? It’s hard to say without knowing more context. Is the declarant using the term to accuse someone of being “grossly unfair” (an opinion) or is he saying that actual fraud is taking place? Suppose someone writes online that Gatorade’s marketing campaign is a “scam” because Gatorade doesn’t really quench thirst as well as plain water. Contrast that with a statement accusing a local accountant of scamming customers out of hundreds of dollars by manipulating their tax returns. To “scam” someone means different things in different contexts.

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Harassment and bullying can take place in many different forms. Sometimes the conduct is actionable in a court of law, and sometimes it isn’t. Sometimes it involves defamation of character, whereas other times the harassment takes the form of electronic stalking. Before scheduling an appointment to speak with a lawyer, you should know the difference. In a nutshell: if the bad actor’s harassing activity consists primarily of spreading false rumors about a person on social media, then we’re most likely dealing with the law of defamation. Conversely, if the harassment consists of persistent threats of sexual assault or physical bodily harm, you’re dealing with the law of criminal stalking. Defamation occurs when a person publishes an “actionable statement” with the requisite intent. Stalking occurs when a person “on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member.” (See Va. Code § 18.2-60.3). I write about defamation law all the time, so the rest of this post will focus on what stalking is and how it is different.

A defendant commits the crime of stalking when the following elements are met:

  1. The defendant directed his or her conduct toward the victim on at least two occasions;
  2. The defendant intended to cause fear or knew or should have known that his or her conduct would cause fear; and
  3. The defendant’s conduct caused the victim to experience reasonable fear of death, criminal sexual assault, or bodily injury.

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For an untrue statement about a person to be actionable as libel or slander, it has to be defamatory in nature. I’ve written about defamatory meaning before, but basically what this means is that the statement has to be more harmful than a mere insult; rather, it must cast a person is such a negative light that people hearing or reading the statement would be deterred from associating or dealing with the person about whom the statement was made. A defamatory statement thus lowers its subject in the eyes of the community. But which community are we talking about? Who are these people in whose estimation one may be defamed? Suppose a person is falsely accused of having been discovered in possession of an assault rifle. Whom should we ask about whether that statement carries defamatory meaning, the National Rifle Association or the Coalition to Stop Gun Violence?

There’s not a whole lot of case law to answer this question. The position of the Restatement of Torts is that a “communication to be defamatory need not tend to prejudice the other in the eyes of everyone in the community or of all of his associates, nor even in the eyes of a majority of them. It is enough that the communication would tend to prejudice him in the eyes of a substantial and respectable minority of them.” (See Restatement (Second) of Torts § 559 cmt e). That seems to be the majority position in courts across the country, including Virginia, whether they express the principle in these terms or not.

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To establish defamation, a plaintiff in federal court must plausibly show the defendant (1) published (2) an actionable statement with (3) the requisite intent. An “actionable statement” is one that is (1) factual (as opposed to opinion); (2) false; (3) defamatory in nature; and (4) about the plaintiff. Certain potentially defamatory statements are protected from defamation actions by qualified privilege. Specifically, the privilege applies to communications between persons on a topic in which they share a common interest or duty. (See Larimore v. Blaylock, 259 Va. 568, 572 (2000)).

A plaintiff can overcome this privilege if he shows by clear and convincing evidence that (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith. (See Cashion v. Smith, 286 Va. 327, 339 (2013)).

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Truth is not always a defense to defamation claims in Virginia. Sometimes a statement that is literally true will nevertheless convey an implied message with defamatory meaning. Virginia thus recognizes claims for defamation by implication in addition to claims for libel and slander made expressly. The latest case to illustrate this principle is Cameron M. Jackson v. Liberty University, currently pending in the Western District of Virginia federal court.

The facts, according to the original complaint, are essentially as follows. Cameron Jackson is a former student and football player at Liberty University, a Christian university in Lynchburg, Virginia. Sarah Browning was on the university’s swim team. Jackson and Browning had been involved in a “casual sexual relationship” for several months. At an off-campus party in August 2015, Browning approached several members of the football team (including Jackson) and performed oral sex on them. Later that night, Jackson and Browning engaged in consensual intercourse in the living room of a friend’s apartment, where others could and did see them.

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“SLAPP” suits are lawsuits brought primarily for the purpose of stifling criticism or intimidating those with opposing views by forcing them to incur legal-defense costs. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). The lawsuits are often disguised as defamation actions but generally have as their true purpose a desire to silence speech deemed undesirable (regardless of whether the speech is truthful). Many states have passed anti-SLAPP laws designed to turn the tables by requiring plaintiffs who bring such suits to reimburse the defendant for legal fees incurred in fighting off the action. Virginia enacted its anti-SLAPP statute only recently–the latest amendments, which allow the recovery of attorneys’ fees for the first time, became effective July 1, 2017. Consequently, not a lot is known about how the courts will interpret and apply its terms. Its language differs markedly from the anti-SLAPP laws in other states, so the Virginia courts are going to have to blaze new territory in deciding how to apply the new law.

One big question the courts are going to have to decide: does Virginia’s new anti-SLAPP law apply to consumer reviews? In the past, defamation actions tended to be brought primarily against newspapers. But now we have the Internet, where anyone can be a publisher of content, and courts are becoming increasingly clogged with defamations brought against consumers by businesses offended by negative reviews posted to Yelp, Angie’s List, or some other consumer-review site. Concerned about studies such as the one by Harvard Business School concluding that a difference of just a single star on Yelp can affect business revenues by nearly 10%, many businesses respond very aggressively to consumers who post negative reviews that bring down their average rating, sometimes resorting to litigation. Such businesses need to be reminded, however, that the First Amendment protects consumers’ right to express their personal views, no matter how negative or harmful they may be. So is this a situation where the new anti-SLAPP law might be applied?

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Defamation Law 101 teaches that expressions of opinion are protected by the First Amendment and are not actionable in court. To bring a successful defamation suit, you’ll need to prove that someone made a false statement of fact about you. If that person merely expressed his or her personal opinion, the law of defamation will not provide a remedy, no matter how unfavorable the opinion is or how harshly it was expressed. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Smart lawyers and even judges will frequently disagree with each other on whether a particular statement is “fact” or “opinion”.

In theory, the differences are clear. A statement of fact is one that contains an assertion capable of being proven true or false. Statements of opinion are those that can’t be proven true or false because they depend on the speaker’s personal, subjective viewpoint. A recent Virginia case illustrates the difficulties that come with applying this test to real-world situations.

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Revenge porn is generally defined as a form of online harassment in which sexually explicit photographs or videos of another individual (usually a former partner) are either taken or shared with others without the consent of the person shown in the images. Perceived “revenge” is sometimes the motive, but not always. Sometimes images are circulated merely for titillation or profit. For this reason, some prefer to use terms like “nonconsensual pornography” or “sexual cyberharassment.” Whatever you call it, if images are shared without the consent of the subject, the results can be devastating to victims and can lead to public degradation, social isolation, and professional humiliation.

Revenge porn laws differ from state to state. Virginia law allows victims to sue for damages and reimbursement of attorneys fees, and makes several forms of revenge porn punishable as a crime. Virginia law is not as tough on revenge porn as some other states, however. In Virginia, the dissemination of nude photos taken with the subject’s consent (e.g., selfies) will generally not be punishable under Virginia’s revenge-porn statutes absent an intent to coerce, harass, or intimidate. So while motive usually doesn’t matter much from the perspective of the victim, it can make all the difference in terms of legal remedies available.

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False police reports are privileged against defamation claims. But the precise nature of that privilege is not always clear. Is it a qualified privilege, subject to being lost through abuse or bad faith, or is it an absolute immunity that insulates all statements to police against defamation claims no matter the intentions of the speaker? The distinction can make all the difference in cases where reports are made to the police not for the purpose of actually reporting crime, or to enforce obedience to the law, or to see that guilty people are punished, but for the purpose of harassing another individual. The nature of the privilege for defamatory statements made to the police will generally depend on the context and timing in which the statements at issue were made.

In Virginia, reports to the police enjoy at least conditional protection. The uncertainty lies in whether that protection can be elevated to “absolute” status. A qualified privilege exists where a communication is made in good faith, on a subject in which the communicating party has an interest or owes a duty, to a party who has a corresponding interest or duty. Citizens are generally thought to have an interest, if not a duty, in keeping the streets safe by identifying potential criminals to the police, and the police obviously have a corresponding interest in receiving that information, so statements made to the police meet the basic test for qualified privilege. (See also Marsh v. Commercial & Sav. Bank of Winchester, 265 F. Supp. 614, 621 (W.D. Va. 1967) (finding statements made by bank tellers to the police were protected by qualified privilege)).

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