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.
The California statute calls for a two-step process. First, the defendant bringing the special motion to strike has to show that the statement at issue falls within the protections of the statute. Second, if the defendant demonstrates that the anti-SLAPP statute is applicable to the claim, the burden shifts to the plaintiff to prove that each challenged claim is legally sufficient and supported by the facts. The court then analyzes the plaintiff’s presentation of evidence much like it would consider a motion for summary judgment. If the plaintiff can’t produce affidavits, documents, and other evidence that would support a favorable judgment, the court will not only dismiss the case but require the plaintiff to pay the defendant’s attorneys’ fees. Not only does Virginia lack this burden-shifting provision, but it also lacks any requirement that attorneys’ fees be awarded to a successful movant. Fee awards are permitted, but whether to award them is up to the judge’s discretion.
The latest Virginia decision grappling with the anti-SLAPP statute is the case of Robert David Steele v. Jason Goodman in the Eastern District of Virginia (which, I would note, was filed by the same attorney representing David Nunes). The case shows how easy it can be for public figures in Virginia to avoid having their cases thrown out shortly after being filed, despite the existence of Virginia’s immunity statute.
The basic facts, according to the opinion, are these. The case was brought by Robert David Steele and his “Earth Intelligence Network.” Steele presents himself as a former CIA officer who works to “redirect the craft of intelligence away from spies and secrecy enabling war and waste towards open sources and methods favorable to peace and prosperity.” He is dedicated to “teaching individuals and organizations about the value of holistic analytics, true cost economics, and Open Source Everything Engineering,” so much so that he was nominated for a Nobel Peace Prize. He bought an RV and toured the country, soliciting donations to fund his mission “to restore integrity and truth to governance.”
The defendants (Jason Goodman and others) are the creative forces behind the “Crowdsource the Truth” (a/k/a CSTT) YouTube channel and other social-media properties. Steele was scheduled to appear on Goodman’s show for an interview in 2017, but canceled at the last minute. According to the opinion:
The day before the scheduled interview, on June 14, 2017, Goodman and Negron published a video that reported, seemingly falsely, that a dirty bomb was present on a ship. As a result of this event, and the ensuing FBI investigation, Steele “immediately canceled the planned interview” and informed Goodman via email that Steele did not wish to associate with Goodman any longer.
Steele alleged that in retaliation for his last-minute cancellation, Goodman and the other defendants conspired to initiate a “smear campaign” by publishing a series of videos highly critical of Steele and his Earth Intelligence Network organization.
The central allegations of the complaint revolve around a series of statements basically claiming that Steele was a scam artist using tax-deductible donations to his organization to personally enrich himself. In a June 2017 video, for example, Goodman says, “I question if…any of his credentials are authentic. I think he’s just a cheap con man,” adding that Steele “knows it’s a useless campaign” and that “he’s just trying to suck $250,000 out of people.” Goodman accuses Steele of being “involved in a pretty serious financial scam” and of “defrauding people across state lines,” stating that “a RICO charge could be involved” because “it seems like he is doing things that are very criminally actionable.”
Steele apparently admitted that he should be treated as a public figure for purposes of the defamation claim. Statements about public figures are often statements deemed to be of public concern, so the the Virginia anti-SLAPP statute (or immunity statute, if you prefer) immediately came into play. The Virginia statute states in pertinent part:
A person shall be immune from civil liability for…a claim of defamation based solely on statements…regarding matters of public concern that would be protected under the First Amendment to the United States Constitution made by that person that are communicated to a third party…. The immunity provided by this section shall not apply to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false.
(See Va. Code § 8.01-223.2).
The court declined to order any kind of evidentiary hearing or summary-judgment-type analysis and chose instead to look solely to the allegations of the complaint. “[T]he Amended Complaint is replete with assertions that Goodman made the multitude of statements with actual knowledge of their falsity,” the court wrote. The court found that because Steele had alleged in his pleadings that Goodman had published statements he knew to be false, that was sufficient to defeat the anti-SLAPP motion, as the “allegations plausibly support a conclusion that Goodman made the statements with knowledge of their falsity or with a reckless disregard as to their veracity.” In states like California, mere allegations are not sufficient to defeat an anti-SLAPP motion.
Of course, the court’s denial of the preliminary motion to dismiss did not mean that Goodman had lost the case. As a public figure, Steele will eventually (i.e., at trial) need to prove that Goodman made false statements about him with knowledge that the statements were false or with reckless disregard of the truth or falsity of the statements, but the point I’m making here is that under the current state of Virginia anti-SLAPP law, many courts will postpone the issue of malice until the trial date, allow discovery to proceed while a motion to dismiss is pending, and may even decline to award attorneys’ fees to a successful movant. For these reasons, some would argue that what Virginia has in Code Section 8.01-223.2 is properly characterized as an immunity provision rather than a true anti-SLAPP statute.