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.