Does Virginia’s Anti-SLAPP Statute Apply Retroactively?

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.

So does Virginia’s revised anti-SLAPP statute materially change substantive rights, or does it merely deal with the procedural aspects of the remedy? The Supreme Court of Virginia has not yet weighed in on the issue, but the Circuit Court of Fairfax County recently had the opportunity to offer an answer to this question in Will Nesbitt Realty v. Jones.

According to the letter opinion of April 30, 2018, the relevant facts are essentially these. Jeremiah Jones hired Will Nesbitt Realty, LLC, to manage a residential property in Woodbridge, Virginia. Jones became dissatisfied with Nesbitt’s services and terminated the arrangement. On December 3, 2015, Jones wrote a lengthy, negative Yelp review, giving Nesbitt just one star and complaining that Nebitt did “absolutely nothing” in exchange for its $2,000+ fee (among numerous other complaints). Will Nesbitt used Yelp’s platform to publicly respond to the review, stating “This review contains numerous false, misleading and libelous statements.” The parties sued each other, Nesbitt claiming that Jones’ Yelp review was defamatory, and Jones claiming that Nesbitt breached gavel2-300x167the parties’ agreements and that Nesbitt’s public Yelp response was in violation of a non-disparagement clause. Jones claimed immunity under the anti-SLAPP statute and asked the court to award attorneys’ fees.*

The court ruled in favor of Jones on the defamation claims and allowed the Yelp review to stand as written, but not because of anti-SLAPP immunity. Rather, the court found that Jones’ statements in the Yelp review were constitutionally protected opinion, hyperbole, and/or truthful (or at least not proven to be false), and that, even if some aspects of the review were not completely true, there was no evidence that Jones acted negligently with respect to the truth and therefore lacked the requisite level of intent to be held liable for defamation.

On the issue of whether the anti-SLAPP statute could be applied retroactively, the court held that the July 2017 amendments (allowing attorneys fees to be recovered in defamation actions subject to the statute) were substantive rather than procedural, and that the new law could therefore not apply retroactively to the December 2015 Yelp review. The court examined Section 8.01-1 and found that the new law did affect substantive rights. The court reasoned that “the revised statute created a right of recovery in a defamation case that did not exist prior to the revision”–namely, the right to recover attorneys’ fees. Because the Yelp review in question was written prior to July 2017, no legal fees were awardable.

Another angle the court might have explored but didn’t is this: Section 1-239 of the Virginia Code protects substantive and vested rights from the retroactive application of statutes. Section 1-239 states that “No new act of the General Assembly shall be construed to repeal a former law,…as to…any right accrued, or claim arising under the former law, or in any way whatever to affect any such…right accrued, or claim arising before the new act of the General Assembly takes effect; except that the proceedings thereafter held shall conform, so far as practicable, to the laws in force at the time of such proceedings….” Section 1-239 would seem to suggest that if a plaintiff had a valid cause of action for defamation that could have been brought prior to July 1, 2017, the anti-SLAPP statute should not be interpreted to deprive the plaintiff of that right.

Suppose a columnist writes an op-ed piece in the local paper calling for stricter gun-control laws. Somewhere in his article, he refers to a particular individual–let’s call her “Julie”–as a card-carrying NRA member. Julie is not an NRA member or supporter and is deeply offended when she learns she has been described as such. For purposes of this hypothetical, assume that all public indications were that Julie supported the NRA, and that while this turned out to be false, it was a fair and reasonable assumption on behalf of the columnist. Prior to July 1, 2017–the effective date of the revised anti-SLAPP statute–Julie might have had a valid defamation action available to her. As a private individual, she could sue anyone who made false and defamatory representations about her to the public (assuming some degree of negligence with respect to the facts)–the fact that the statement was made in the course of an article on a topic of public concern (gun control) wouldn’t have made a difference. She wouldn’t be entitled to presumed damages absent a showing of malice (see WJLA-TV v. Levin, 264 Va. 140, 155 (2002)), but she might still have a valid claim for any actual harm to her reputation.

The revised anti-SLAPP statute restricts the ability to sue based on statements made on matters of public concern, like gun control. If the law were applied to an op-ed piece written prior to July 1, 2017, the statute would appear to immunize the author from suit absent a showing of malice. Julie would not be able to recover damages for harm caused to her reputation. Thus, applying the anti-SLAPP statute retroactively would deprive Julie of a substantive legal right, which is prohibited by Section 1-239. So this would be another ground on which to deny applying the statute retroactively.

It remains to be seen whether other Virginia courts will follow in the footsteps of Will Nesbitt Realty v. Jones. It would not be completely unreasonable for a different court to find that the attorneys-fees provision in § 8.01-223.2(B) is merely procedural in that it grants only a method of obtaining redress for an existing right. Courts around the country have struggled with how to properly characterize their respective anti-SLAPP statutes and have reached different conclusions. The Supreme Court of Virginia may never have to decide the issue, as the statute of limitations for defamation claims is only one year. Soon, there won’t be any more defamation actions based on statements made prior to July 1, 2017, and I will be left wondering why I took the trouble to write this.


*Note: On page 20 of the opinion, the court writes that it was the plaintiff (i.e., Nesbitt) who asked for recovery of attorneys’ fees “in connection with prevailing on the defamation counts.” Because it was the defendant, Jones, who prevailed on the defamation counts, I assume the court’s reference here to “Plaintiff” was inadvertent.

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