The First Amendment guarantees, among other freedoms, “the right of the people…to petition the Government for a redress of grievances.” This right to petition is part of the First Amendment‘s free-speech protection, as it pertains to a particular form of freedom of expression. A lawsuit aimed at deterring or punishing citizens from exercising this First Amendment right, or from otherwise exercising their right to freely express their political views or engage in discourse on a matter of public concern, is known as a “SLAPP” suit. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). SLAPP suits usually don’t advertise the fact that they seek to chill the expression of ideas; they are often disguised as legitimate lawsuits for defamation or some other tort.
A majority of states have passed anti-SLAPP laws designed to facilitate the identification and early dismissal of frivolous SLAPP suits. Virginia is not one of those states. Until recently, Virginia had no anti-SLAPP law to speak of and gained a reputation among plaintiff’s lawyers as a welcoming jurisdiction friendly to questionable defamation suits. A movement is underway to fix that. A flurry of defamation lawsuits filed in Virginia by California congressman Devin Nunes inspired the introduction of House Bill 759, designed to bring Virginia’s anti-SLAPP law more in line with California’s more robust First Amendment protection. California’s anti-SLAPP law allows a defendant to make a “special” motion to dismiss if he or she can show the plaintiff’s claim arises from a statement made in connection with a public issue in furtherance of the right to free speech. If the court grants one of these special motions to strike, the anti-SLAPP statute requires the unsuccessful plaintiff to pay the defendant’s attorneys’ fees. (Attorneys’ fees are normally not recoverable in defamation actions, so this can be a powerful deterrent against meritless lawsuits.)
As of this writing (in February 2020), Virginia still has not enacted a traditional anti-SLAPP statute. But the law has evolved over the past 10-15 years and the trend is towards increased protection for free-speech rights. Here’s how Virginia’s anti-SLAPP protection has evolved over the years and where things stand in 2020:
2007: Immunity for Statements Made at Public Hearings
Virginia passed a law in 2007 that immunizes from civil liability statements made at public hearings pursuant to the First Amendment’s guarantee of the right to petition one’s government. In its original form, the law, found at Va. Code 8.01-223.2, immunized statements made at public hearings against any claim for business conspiracy or tortious interference, but not defamation. The privilege applied 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.” As with the common law privilege against defamation claims based on statements made in such contexts, there was an exception for malicious statements–those made with knowledge of their falsity, or with reckless disregard for whether they are true or false. This early version of 8.01-223.2 basically extended the common-law privilege that would apply in such circumstances to defamation claims to claims for business conspiracy and tortious interference. It didn’t allow a defendant who has successfully moved to dismiss to recover his attorneys’ fees, and it did not contemplate a discovery freeze or any kind of expedited dismissal procedure. Although the law provided some protection against SLAPP suits designed to stifle public speech, the law was generally not considered an “anti-SLAPP” statute at all. The focus instead was on the application of a privilege defense.
In the context of defamation law, there are two types of privilege: absolute privilege and qualified privilege. The maker of an absolutely privileged communication is accorded complete immunity from liability even though the communication is made maliciously and with knowledge that it is false. See Lindeman v. Lesnick, 268 Va. 532, 537 (2004). There are essentially only three situations in which absolute privilege will apply: (1) judicial proceedings; (2) proceedings of bodies creating legislation; and (3) communications among military and naval officers.
Qualified privilege, which is much more common, can extend to a wide variety of communications. Generally speaking, it can apply to any statement made from one person to another about any subject-matter in which both parties share a common interest or duty. Common examples include employee performance reviews, reports of public proceedings, police reports, and fair comment on matters of public concern. Unlike absolute privilege, qualified privilege will be defeated if a statement is made with malice.
There is a qualified privilege against defamation claims for statements made at public hearings of the Virginia General Assembly as well as at hearings of the governing bodies of localities such as towns and counties. When the governing bodies are creating legislation, statements made during the creation of such law are afforded an absolute privilege, at least when the Virginia General Assembly is involved. (There is no definitive Virginia Supreme Court case applying an absolute privilege to the legislative functions of local governments, but it is likely the court would extend the privilege to cities, towns and counties – see Isle of Wight Cnty. v. Nogiec, 281 Va. 140, 155, 704 S.E.2d 83, 90 (2011) (“Assuming, without deciding, that absolute privilege is afforded to subordinate legislative bodies…”).
2017: Immunity for Statements on Matters of Public Concern
In 2017, the Virginia legislature amended the immunity statute to extend beyond statements made at a public hearing to cover any/all statements on matters of public concern. The statute was also amended to permit (but not require) the court to award attorneys’ fees upon dismissal on immunity grounds. 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. The 2017 amendment was clearly designed to expand Virginia’s anti-SLAPP protection, but the amended law was still a far cry from offering the level of protection available in states like California. No special motion procedure was specified, no stay of discovery was authorized, and plaintiffs often found they could get around the statute merely by alleging actual or constructive knowledge of falsity, without producing any actual evidence of malice.
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 the 2017 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 after July 1, 2017, private plaintiffs have had 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.
The 2017 amendment also appeared 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, 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”.
2020: The Introduction of House Bill 759
Many lawyers have referred to Section 8.01-223.2 as an anti-SLAPP statute–at least since 2017 when it was amended to allow awards of attorneys’ fees–but officially it’s still just an immunity statute that codifies certain privileged communications. A bill has been introduced in the Virginia legislature, however, to finally adopt a fully featured, honest-to-goodness anti-SLAPP statute. Offered on January 8, 2020, House Bill 759 would repeal 8.01-223.2 and replace it with a much more detailed law modeled off of the strongest anti-SLAPP statutes around the country. Key features include the following:
- It would be Virginia’s first law expressly targeted at strategic lawsuits against public participation. As such, it would be Virginia’s first “official” anti-SLAPP statute.
- It provides for an expedited procedure to dismiss frivolous SLAPP suits, to be initiated with a “special motion to dismiss.”
- It authorizes the court to consider affidavits when ruling on the motion (otherwise, affidavits would be inadmissible hearsay).
- It provides that discovery on the claim will be stayed until such time as the court rules on the special motion to dismiss.
- Special protections are offered to third parties who receive subpoenas seeking their personal identifying information in connection with SLAPP suits.
- Awards of attorneys’ fees would be mandatory rather than permissive.
The proposed law does have a few quirks. It provides that special motions to dismiss should be treated as demurrers, which struck me as odd because the demurrer procedure does not permit the introduction of evidence. Most anti-SLAPP statutes require some production of evidence. After all, if we’re just going to defer to the plaintiff’s allegations without proof, the anti-SLAPP statute isn’t going to have much effect as cases are going to continue to have to be allowed to proceed to trial, where evidence can be presented. The proposed law also seems a bit vague as to burdens of proof at the dismissal stage. It provides that a “prima facie showing” is all that is required for a plaintiff to survive a special motion to dismiss. But the proposed bill is still in its early stages and may undergo significant revisions before it becomes law (if it becomes law at all). What seems clear is that Virginia’s reputation as a haven for libel tourism is headed for a change.