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.