Section 8.01-223.2 of the Virginia Code, unofficially recognized as Virginia’s anti-SLAPP statute, is designed to deter frivolous “SLAPP” lawsuits brought for the improper purpose of harassing individuals who exercise their protected right to freedom of speech. The statute immunizes against defamation liability most statements made in good faith on matters of public concern (i.e., statements relating to any matter of political, social, or other legitimate concern to the community). A defendant who successfully invokes the anti-SLAPP statute may be entitled to recover attorneys’ fees from the plaintiff. The statute’s key protections went into effect in 2017. New laws are always a work in progress and this one is no exception. Presented below are the five latest revisions to Virginia’s anti-SLAPP law. The new law goes into effect July 1, 2023.
1. Dismissal no longer required
Prior to the 2023 amendments, the statute provided that to be entitled to an award of attorneys’ fees, the defendant must have the suit against him “dismissed.” Dismissal is obviously what the defendant wants and is the preferred remedy when a frivolous defamation action is brought to chill the free exercise of the right to speak on matters of public concern, but many trial judges are reluctant to dismiss cases at the outset, whether on a demurrer or plea in bar, and prefer to allow borderline cases to proceed to a jury trial. At trial, if a jury finds that the defendant was speaking in good faith on a matter of public concern and is free from fault, it will enter judgment for the defendant due to the protection of the statute. A judgment in the defendant’s favor is not a dismissal of the claim. Therefore, there was some confusion about whether the anti-SLAPP statute applied in this situation. That confusion has been addressed with the 2023 amendments, which now state unequivocally that attorney fees and costs may be awarded to any person who “prevails in a legal action” as a result of anti-SLAPP immunity.
2. Removal of “constructive knowledge” terminology
As discussed in my earlier blog post on the subject, I’ve never been a fan of including “constructive knowledge” of falsity as an exception to anti-SLAPP immunity. I’m not aware of any other state’s anti-SLAPP law that includes such an exception. The 2023 amendments remove the reference to constructive knowledge but leave in its substance, which was to make the statute’s protection inapplicable to statements made innocently and in good faith but unreasonably or negligently. The new language reads, “The immunity provided by this section shall not apply to any statements that the declarant knew or should have known were false or were made with reckless disregard for whether they were false.”
3. Immunity expanded to all forms of tort liability
When this law was first passed back in 2007, it afforded immunity only to certain statements made at public hearings, and only against claims for business conspiracy and tortious interference. Defamation was added 10 years later. Beginning July 1, 2023, the statute provides protection for any and all torts when the tort is based solely on statements regarding matters of public concern or other statements covered by the statute. In other words, statements immunized from the statute are now immunized against any and all tort claims, not just the three enumerated torts found in the current version of the statute.
4. Immunity expanded to electronic communications to local officials
The current version of the statute affords protection to statements “made at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body.” Some citizens, however, choose to address their elected representatives by email or social media rather than by attending a public meeting, approaching the microphone, and giving a speech. The latest revisions to the statute clarify that communications to local officials are entitled to immunity even if not made in person at a public hearing.
5. New immunity for whistleblowers
A few years ago, Virginia enacted Section 40.1-27.3, which (among other things) creates a cause of action for certain retaliatory acts by an employer (e.g., discharge, discipline, salary reduction, etc.) against an employee who reports to a supervisor or law-enforcement official any violation of federal or state law, or who cooperates with law enforcement officials conducting an investigation or inquiry into alleged violations of law by the employer. The latest amendments to the anti-SLAPP statute provide that these whistleblowers also cannot be sued for defamation or any other torts provided the other requirements of the statute are met.
Note that even with these amendments, the statute is still far weaker than the anti-SLAPP statutes in jurisdictions like California, where the statute provides expressly for an expedited dismissal hearing, a stay of discovery, and mandatory fee awards.