A new law will go into effect on July 1, 2017, that creates what amounts to a qualified privilege against defamation actions for statements regarding matters of public concern that would be entitled to protection under the First Amendment. Under the amended and restated Va Code § 8.01-223.2, the immunity would be lost with respect to any statements made with actual malice (i.e., statements made with actual knowledge that they are false, or with reckless disregard for whether they are false) or “constructive knowledge” of the statements’ falsity. Significantly, because the General Assembly chose to incorporate the privilege into Virginia’s existing anti-SLAPP statute, if a defendant is successful in having a defamation case dismissed on grounds of this new statutory immunity, he may be entitled to reimbursement of his attorneys’ fees. The amendment appears to be designed to drastically expand Virginia’s anti-SLAPP statute (which had previously been limited to statements made at public hearings) and will almost certainly lead to an uptick in plea-in-bar hearings seeking quick dismissals and fee awards.
What is not yet clear to me is why “constructive knowledge” of falsity was included as an exception to the immunity. A person has constructive knowledge of a fact if, through the exercise of reasonable care, he should have known it, even if he didn’t actually know the fact. Including constructive knowledge as an exception eviscerates much of the statute’s potential deterrent effect. This is because virtually every facially valid defamation claim will involve an allegation that the defendant was had at least constructive knowledge that what he was saying was false and that he acted negligently with respect to uncovering the truth. To state a prima facie case for defamation, a private plaintiff must allege that the defendant either knew that the statement was false, or, believing the statement to be true, lacked a reasonable basis for such belief, or acted negligently in failing to determine the facts on which the publication was based. (See Lewis v. Kei, 281 Va. 715, 725 (2011)). In other words, if a plaintiff fails to allege that the defendant had at least constructive knowledge of falsity, the case will be dismissed on demurrer regardless of the anti-SLAPP immunity. On the other hand, if a plaintiff does allege (and eventually prove) constructive knowledge, the immunity will not apply. In short, it does not appear to me that there will be many situations in which this new “public concern” immunity will come into play. I suppose defendants will start opting to file pleas in bar in lieu of demurrers. We’ll have to wait and see how courts deal with this issue.
Prior to the enactment of this amendment, if a defamation action was based on a statement involving a matter of public concern, the only real significance was that private plaintiffs (i.e., those who are neither public officials nor public figures) had to prove actual malice in order to recover presumed damages in cases of defamation per se. (See WJLA-TV v. Levin, 264 Va. 140, 155 (2002). That remains true, but starting July 1, private plaintiffs will also need to consider the fact that if they can’t prove malice, or at least constructive knowledge of falsity, the possibility exists that their case will not only get dismissed, but that they will be liable to pay the defendant’s legal fees.
It would also appear that the new anti-SLAPP statute is designed to chip away at the holding of Gazette, Inc. v. Harris, 229 Va. 1 (1985), which held that in Virginia, unlike in some other states, a private plaintiff need not prove malice in order to recover for defamation based on a statement relating to a matter of public concern. In Virginia, at least up until now, a private plaintiff could sue on a statement relating to a matter of public concern and recover damages provided the defendant uttered the statement negligently in failing to determine the true facts upon which the statement was based. At first glance, it appeared to me the amendment was going to make malice a required showing in cases involving matters of public concern, but again, by including “constructive knowledge” as an exception to the immunity, it still does not appear that malice is necessarily required.
So what is a “matter of public concern,” anyway? In the context of the First Amendment, a matter is of public concern when it is “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” (See City of San Diego, Cal. v. Roe, 543 U.S. 77, 83–84 (2004). Other courts have held that a matter is of public concern whenever it embraces an issue about which information is needed or is appropriate, or when the public may reasonably be expected to have a legitimate interest in what is being published. In Barrett v. Univ. of Colo. Health Sci. Ctr., 851 P.2d 258, 263 (Colo. Ct. App. 1993), a case involving a public employee’s constitutional right of free speech, the court held that “[t]he determination of whether…speech touches a matter of public concern rests on a particularized examination of each statement to determine whether it can be fairly considered as relating to any matter of political, social, or other concern to the community”. Once Virginia courts start grappling with the new statute, they will likely adopt a similar definition.