Articles Posted in Anti-SLAPP

Some defamation cases are so lacking in merit that a defendant can pick and choose among multiple grounds for dismissal. Virginia’s anti-SLAPP statute, for example, is designed to provide a remedy for defendants who are sued for exercising their First Amendment rights while speaking on matters of public concern. A demurrer, on the other hand, allows a defendant to challenge the legal sufficiency of the plaintiff’s complaint in situations where the complaint fails to present a valid claim even if one assumes all the plaintiff’s allegations are true. The anti-SLAPP statute authorizes an award of attorney fees to a prevailing defendant; a successful demurrant may succeed in getting the case dismissed but will generally not be entitled to recovery of legal fees. Virginia defense lawyers often struggle with the strategic decision of which dispositive motion to file and argue first to maximize the likelihood of both a dismissal and an award of legal fees. In a decision of the Virginia Court of Appeals released earlier this week, the court offered some guidance, ruling that even if a demurrer is argued first and sustained, a pending anti-SLAPP motion will not become moot and fees may still be awarded if the statement at issue is covered by the statute.

The case is Jamie Allen Harless v. Kenneth E. Nicely and the facts are straightforward: a high school football coach was not pleased with the way his behavior was characterized by four employees of Roanoke County Public Schools who had written various reports and other statements about his conduct during a football game with a competing high school. The school principal had issued a report describing how she investigated an incident and determined that Coach Harless had called a student on the opposing team a “fucking dirty player” and uttered various other profanities. The complaint alleges she added her own commentary to the report, writing for example that “Mr. Harless acted in a racist manner unfit to coach when he intentionally targeted two WBHS players because they were Black.” The complaint also takes issue with various statements accusing him of unsportsmanlike recruiting methods that violate Virginia High School League policies.

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In most cases, it won’t be actionable to call for the resignation of a public official or to question that person’s ethics or professionalism. The First Amendment is intended to protect robust debate over the performance of government officials, and statements like these are generally considered to be non-actionable expressions of opinion. But in situations where criticisms are laden with factual content, such as when they imply the existence of false factual assertions, they may be deemed defamatory and actionable. The Virginia Court of Appeals recently reinstated a previously dismissed defamation claim against a Portsmouth pastor deemed to have crossed this line in his public statements about a local police chief.

The case of Greene v. Portsmouth arises out of the protests surrounding a Confederate statue in Portsmouth, Virginia, in the summer of 2020. A group of protestors had gathered to deface the monument. L. Louise Lucas, a state senator, approached the monument and indicated to the crowd and police that the city manager and mayor had authorized damage to the monument and that no arrests should be made. Lucas allegedly told the crowd, “to hell with City Council, they had three years” and encouraged them to “go cover it” with paint. She assured the crowd they would not be stopped and claimed she had spoken with the city manager, implying that they had permission to act.

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Virginia Code § 8.01-223.2, informally known as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, provides immunity in tort for statements on matters of public concern (subject to certain exceptions not relevant here). I recently had an issue arise in a case that prompted the question of what “that would be protected under the First Amendment” really means in the context of how that phrase is used in the statute, which states in pertinent part as follows:

A person shall be immune from tort liability if the tort claim is based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the Constitution of the United States made by that person that are communicated to a third party….

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If truth is a complete defense to a defamation action, what about “scientific truth”? Are scientific findings “facts” that can form the basis of a defamation action if a particular scientist contends they are inaccurate? If so, how much of a consensus is required before a matter of scientific inquiry can be considered “settled” and thus a matter of established fact? Anti-vaxxers have filed a number of defamation actions around the country against media outlets accusing them of spreading misinformation. Few (if any) have been successful. The consensus among the courts appears to be that defamation actions are not an appropriate means of addressing arguments over unsettled questions over which vaccines treat disease most effectively. It’s not so much a matter of whether matters of scientific inquiry should be regarded as facts or opinions but of the practical reality that academic questions on complex scientific topics just aren’t the sort of thing courts or juries are equipped to resolve as definitively true or false. Courts are interested in protecting First Amendment rights, not in picking sides in a scientific debate.

Case in point: Dr. Peter A. McCullough v. Gannett Company, filed earlier this year in the Eastern District of Virginia. Dr. Peter McCullough is a cardiologist and epidemiologist who has been a vocal critic of the medical response to the COVID-19 crisis. According to his complaint, he is “considered one of the world’s leading experts on COVID-19.” The Bartlesville Examiner-Enterprise, an Oklahoma newspaper owned by Gannett Company, ran a story in October 2021 about an upcoming appearance Dr. McCullough was to make at a local community center. The article contains several quotes from a Dr. Anuj Malik, an infectious disease physician who strongly disagreed with Dr. McCullough’s views on the effectiveness of the COVID vaccine. Dr. McCullough claimed the following statements attributed to Dr. Malik were defamatory: Continue reading

Section 8.01-223.2 of the Virginia Code, unofficially recognized as Virginia’s anti-SLAPP statute, is designed to deter frivolous “SLAPP” lawsuits brought for the improper purpose of harassing individuals who exercise their protected right to freedom of speech. The statute immunizes against defamation liability most statements made in good faith on matters of public concern (i.e., statements relating to any matter of political, social, or other legitimate concern to the community). A defendant who successfully invokes the anti-SLAPP statute may be entitled to recover attorneys’ fees from the plaintiff. The statute’s key protections went into effect in 2017. New laws are always a work in progress and this one is no exception. Presented below are the five latest revisions to Virginia’s anti-SLAPP law. The new law goes into effect July 1, 2023.

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Virginia’s anti-SLAPP statute has received a lot of flak for supposedly not being strong enough to deter frivolous defamation actions designed to chill the exercise of First Amendment rights. A case decided last week down in Roanoke, however, demonstrates that just because fee awards are discretionary does not mean that fees won’t be awarded in appropriate circumstances. When a local family sued Black Lives Matter Franklin County and its Director, Bridgette Craighead, for statements she made about race relations in an ABC News segment, the court found the statements had nothing to do with the plaintiffs, were not defamatory, and were protected by the First Amendment. Because the case was utterly frivolous, the court awarded attorneys’ fees under the anti-SLAPP statute.

In the case of Crystal Minnix v. Sinclair Television Group, the segment at issue was titled “Cops’ role in Jan. 6 attack divides Virginia town with ties to Confederacy.” The focus of the story was on the Rocky Mount community’s reaction to the news that two of its law enforcement officers were apparently at the Capitol on January 6, 2021. For a duration of roughly four seconds during the video segment, the story included footage of a red, white and blue house owned by the plaintiffs while a voiceover states, “Rocky Mount is predominantly white and politically conservative.” Immediately preceding the display of the plaintiffs’ house, a reporter is shown interviewing Ms. Craighead in which Craighead says, “It’s their land and their country and we just live in it.”

The plaintiffs did not appreciate their house being included in the story, so they sued Craighead, Black Lives Matter Franklin County, the reporters, and the news organizations running the story, for $67,000,000 and other remedies. According to them, Ms. Craighead’s statements, taken in the context of the news story as a whole, implied the following about them:

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Defamation law in Virginia and Washington, D.C. is identical in most material respects. Choice-of-law principles usually won’t make much of a difference to the outcome of a defamation case. Both Virginia and D.C. follow the general principles of defamation law that are recognized throughout the United States. There are, however, some notable differences in terms of the specific rules and legal standards that apply to defamation cases. Today’s blog post summarizes some of the key differences that might affect how you choose to present your case or where you intend to bring it.

Defamation Per Se

Virginia recognizes both defamation per se and defamation per quod. In the District of Columbia, the law in this area is less clear. Defamation per se is a type of defamation that is considered so damaging to a person’s reputation that it is automatically assumed to be defamatory, without the need for the plaintiff to prove actual damages. In Virginia, defamatory statements qualify as “per se” defamatory if they (1) impute the commission of a crime involving moral turpitude; (2) impute that the plaintiff is infected with a contagious disease which would exclude the party from society; (3) impute an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudice the party in his or her profession or trade. In the District, there isn’t a lot of authority recognizing defamation per se in any situation other than one involving a false statement relating to the commission of a serious crime. (See, e.g., Raboya v. Shrybman & Assocs., 777 F. Supp. 58, 59 (D.D.C. 1991) (“In the District of Columbia, in order to be actionable as libel per se, the contents of a defamatory publication must “impute…the commission of some criminal offense for which [the Plaintiff] may be indicted and punished, if the charge involves moral turpitude and is such as will injuriously affect [the Plaintiff’s] social standing, or,…the question is whether, from the language attributed to defendant, there is something from which commission of a crime can be inferred.’”)). Thus, a plaintiff contemplating a defamation claim based on a false statement prejudicing the plaintiff in his or her profession would usually be better off bringing the claim in Virginia, where damages may be presumed. Continue reading

When California congressman Devin Nunes, a public figure, decided to file a pair of defamation lawsuits against Twitter (based in California), The McClatchy Company (based in California), and others, why do you suppose he selected Virginia as his forum of choice? One popular theory is that Virginia’s anti-SLAPP laws are much weaker than those in California and many other states. In fact, some Virginia courts aren’t so sure Virginia’s law can even be characterized accurately an an “anti-SLAPP statute,” given that the phrase is not found anywhere in the statute itself and the law does not expressly authorize any special motion designed to suspend discovery and cut the litigation short absent an evidentiary showing by the plaintiff.

Like traditional anti-SLAPP statutes, Virginia’s immunity statute applies to defamation claims based solely on statements regarding matters of public concern that would be protected under the First Amendment to the United States Constitution. Unlike most anti-SLAPP statutes, however, Virginia lacks any special procedure designed to invoke this immunity at the earliest stages of the litigation. In California, for example, if a defamation lawsuit is brought over a statement amounting to a constitutionally protected exercise of free speech, the person sued can file a “special motion to strike” that (a) suspends all discovery, and (b) requires the plaintiff to proffer evidence sufficient to show a likelihood of success on the merits of the case. Virginia procedural rules do allow for the filing of a preliminary motion called a “plea in bar,” but many Virginia judges prefer to address the immunity issue at trial rather than at the start of the litigation.

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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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“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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