The Virginia Defamation Law Blog
Among the types of statements protected from defamation claims by an absolute privilege are statements made in connection with the proceedings of bodies creating legislation. Earlier today, the Supreme Court of Virginia issued an opinion in Brooks-Buck v. Wahlstrom in which it offered some clarification regarding the scope of this legislative immunity. At issue was whether a school board member’s written statement was protected by common-law legislative immunity when made during internal disciplinary proceedings targeting another board member. The statement claimed that the plaintiff, Deborah Wahlstrom, had committed perjury in an earlier FOIA action.
The Court held that while initiating disciplinary proceedings against fellow board members is a protected legislative function, legislative immunity does not extend to statements about third parties when those statements are not integral to the legislative act itself. In affirming the lower court’s denial of immunity at the demurrer stage, the Court emphasized that the shield of legislative immunity does not protect defamatory statements that stray from the core purposes of legislative activity. (The Court did note, by the way, that the immunity argument should have been raised by a plea in bar, not a demurrer, since legislative immunity is an affirmative defense.)
The basic facts of the case are as follows. Wahlstrom is an educator and vocal critic of the Suffolk City School Board. She had previously prevailed in a FOIA lawsuit against the Board. Following that litigation, tensions remained high. In 2023, then-chairperson Judith Brooks-Buck initiated disciplinary proceedings against fellow school board member Dawn Marie Brittingham, who was reportedly supportive of Wahlstrom. In the narrative submitted to support the disciplinary complaint, Brooks-Buck alleged that Wahlstrom had committed perjury in her earlier FOIA case. Tyron Riddick, then the chairperson of the school board, issued a “notice” addressing Brittingham’s alleged disciplinary violations and attached Brooks-Buck’s narrative to the notice. Wahlstrom eventually learned of the statement accusing her of perjury and sued Brooks-Buck and Riddick for defamation and defamation per se. The defendants filed demurrers asserting absolute immunity under the doctrines of legislative, sovereign, and statutory (anti-SLAPP) immunity. The trial court overruled those demurrers in part, and the Virginia Supreme Court granted interlocutory review under Va Code § 8.01-670.2(A).
The Supreme Court of Virginia quickly disposed of the soverign immunity and anti-SLAPP claims. As to sovereign immunity, the Court reaffirmed that individual school board members are not immune from intentional torts when sued in their individual capacities (which they were). As for the anti-SLAPP statute, it was premature to say whether immunity existed because the complaint contained allegations sufficient to establish (if eventually proven) that the defendants made the statements with knowledge of falsity or with reckless disregard for the truth. Anti-SLAPP immunity does not extend to such statements.
The question of legislative immunity was a closer call. First of all, was the School Board even engaging in legislative activity? The Court noted that “local legislators, such as members of school boards or other governing bodies, are protected by common law legislative immunity when performing legislative functions.” The Court acknowledged the well-established doctrine that legislators enjoy legislative immunity when acting within the “sphere of legitimate legislative activity.” (See Board of Supervisors v. Davenport & Co., 285 Va. 580, 589 (2013)).
Legislative functions include, but are not limited to, things like “delivering an opinion, uttering a speech, or haranguing in debate; proposing legislation; voting on legislation; making, publishing, presenting, and using legislative reports; authorizing investigations and issuing subpoenas; and holding hearings and introducing 
material at [those] hearings” (again citing Davenport). So do internal disciplinary proceedings count?
The Court held in the affirmative, noting that the sphere of legitimate legislative activity includes not merely official legislative proceedings but also the essentials of the legislative process: acts that are integral to the sphere of legitimate legislative activity. The Court adopted the reasoning of the U.S. Court of Appeals for the Fourth Circuit in Whitener v. McWatters, 112 F.3d 740 (4th Cir. 1997), recognizing that disciplining a fellow legislator can qualify as a “core” legislative act because it preserves the integrity and functionality of the legislative body. Accordingly, the act of initiating proceedings against Brittingham was, in itself, a protected legislative function.
But that did not end the analysis, because Wahlstrom was not a school board member. “A local legislative body engages in a legislative act when it disciplines one of its members,” the Court held. Legislative immunity therefore attaches to the proceedings, but that immunity does not necessarily extend to statements during the proceedings that relate to a non-member. Legislative immunity protects statements only when they are integral to the act of legislating. Thus, if the statements about the private citizen were integral to the disciplinary proceeding, immunity would likely protect the statements. On the other hand, if the statements about the non-member were “gratuitous and nonessential to the disciplinary proceedings,” legislative immunity would not likely apply as the statement would not be considered a legislative act.
Here, viewing the allegations in the light most favorable to Wahlstrom, the Court found that the trial court did not err by overruling the demurrer. A reasonable jurist could conclude that the statement about Wahlstrom was “gratuitous and nonessential” and therefore fell outside the protective umbrella of legislative immunity.