The First Amendment guarantees, among other freedoms, “the right of the people…to petition the Government for a redress of grievances.” This right to petition is part of the First Amendment‘s free-speech protection, as it pertains to a particular form of freedom of expression. A lawsuit aimed at deterring or punishing citizens from exercising this First Amendment right, or from otherwise exercising their right to freely express their political views or engage in discourse on a matter of public concern, is known as a “SLAPP” suit. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). SLAPP suits usually don’t advertise the fact that they seek to chill the expression of ideas; they are often disguised as legitimate lawsuits for defamation or some other tort.
A majority of states have passed anti-SLAPP laws designed to facilitate the identification and early dismissal of frivolous SLAPP suits. The laws differ from state to state, but generally allow a defendant to make a “special” motion to dismiss if he can show the claim arises from a statement made in connection with a public issue in furtherance of the right to free speech. Significantly, if the court grants one of these special motions to strike, the anti-SLAPP statutes generally allow the defendant to recover his attorneys’ fees. Attorneys’ fees are normally not recoverable in defamation actions, so this can be a powerful deterrent against meritless lawsuits.
Virginia is one of those states that has not enacted a traditional anti-SLAPP statute. It does, however, have a law that immunizes from civil liability statements made at public hearings pursuant to the First Amendment’s guarantee of the right to petition one’s government. It basically extends the common-law privilege that would apply in such circumstances to defamation claims to claims for business conspiracy and tortious interference. It doesn’t allow a defendant who has successfully moved to dismiss to recover his attorneys’ fees, but there are other ways of recovering legal fees in Virginia if the case was truly frivolous. [***UPDATE*** This blog post was written in April 2015. Virginia’s anti-SLAPP statute was amended in 2017 to extend to defamation actions based on statements on matters of public concern (even if not made at a public hearing) and to allow the recovery of attorneys’ fees. The new provisions are discussed here.]
In the context of defamation law, there are two types of privilege: absolute privilege and qualified privilege. The maker of an absolutely privileged communication is accorded complete immunity from liability even though the communication is made maliciously and with knowledge that it is false. See Lindeman v. Lesnick, 268 Va. 532, 537 (2004). There are essentially only three situations in which absolute privilege will apply: (1) judicial proceedings; (2) proceedings of bodies creating legislation; and (3) communications among military and naval officers.
Qualified privilege, which is much more common, can extend to a wide variety of communications. Generally speaking, it can apply to any statement made from one person to another about any subject-matter in which both parties share a common interest or duty. Common examples include employee performance reviews, reports of public proceedings, police reports, and fair comment on matters of public concern. Unlike absolute privilege, qualified privilege will be defeated if a statement is made with malice.
There is a qualified privilege against defamation claims for statements made at public hearings of the Virginia General Assembly as well as at hearings of the governing bodies of localities such as towns and counties. When the governing bodies are creating legislation, statements made during the creation of such law are afforded an absolute privilege, at least when the Virginia General Assembly is involved. (There is no definitive Virginia Supreme Court case applying an absolute privilege to the legislative functions of local governments, but it is likely the court would extend the privilege to cities, towns and counties – see Isle of Wight Cnty. v. Nogiec, 281 Va. 140, 155, 704 S.E.2d 83, 90 (2011) (“Assuming, without deciding, that absolute privilege is afforded to subordinate legislative bodies…”).
What many don’t realize is that there is also a statutory qualified privilege in Virginia that immunizes statements made at public hearings from forming the basis for any claim for business conspiracy or tortious interference. The statute is found at Va. Code 8.01-223.2. The privilege applies to “statements made…at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body.” As with the common law privilege against defamation claims based on statements made in such contexts, there is an exception for malicious statements–those made with knowledge of their falsity, or with reckless disregard for whether they are true or false. (Note: As noted above, in the defamation context, there is an absolute privilege (to which the “malice” exception does not apply) for statements made during public hearings that concern legislation, as opposed to government meetings that are merely supervisory or administrative in nature).
So is Section 8.01-223.2 an “anti-SLAPP” law? Yes, in the sense that it is targeted at meritless lawsuits that arise out of “public participation” at public hearings. Still, it does not come close to offering the same amount of protection against such suits as a traditional anti-SLAPP statute, in that it does not apply to statements made outside of the hearing room and does not allow for the recovery of legal fees.