After years of being a happy haven for outrageous libel tourism, providing a steady source of income for certain lawyers and a source of intimidation for many speakers, Virginia has been slowly upgrading its anti-SLAPP law. The changes may even be applicable to diversity cases pending in federal court.
A few years ago, Virginia created an immunity against suits for specific torts for statements at public hearings that were made without actual malice; when the plaintiff secured a dismissal based on that immunity, the law provided that the court may award attorney fees. In 2017, responding to lobbying efforts from Yelp and Public Citizen. it amended that law to extend the immunity to protect against defamation claims, and to apply the immunity to all statements published to third parties on issues of public concern. As I pointed out when this change was made, the anti-SLAPP law still did not provide the protections of a procedure to get swift dismissal at the outset of the case, and because Virginia procedures makes it very hard to get dismissal on the face of a complaint, or to get summary judgment, the prospect of an award of attorney fees upon dismissal was not much of a deterrent against pursuing weak cases against protected speech. And fees are only permissive, not required or at least presumed when an anti-SLAPP motion is granted
This year, the law was improved yet again. The two most important changes are that (1) the immunity and the permissive attorney fee provision now apply to all tort claims over speech on matters of public concern, and (2) attorney fee awards are authorized when the defendant prevails at any stage of the litigation. (Virginia is the only state other than Rhode Island that provides for fee awards against SLAPP’ing plaintiffs who lose, not necessarily as a result of a special anti-SLAPP motion but at any stage of the litigation, even after trial). The law also extends anti-SLAPP protections to employees who are sued for certain whistleblower statements or actions for which Virginia law protects them against employer retaliation
There is plenty of room for improvement here. For example, one of the strengths of anti-SLAPP laws in many states is that they provide special dismissal procedures for claims based on protected speech, including a prompt hearing, an obligation of the plaintiff to make an affirmative showing of evidence supporting its claims, and presumptive limits on discovery (or cost-shifting related to discovery) pending the outcome of those motions. And they generally make an award of attorney fees for prevailing defendants mandatory.
But at the same time, the very strength of those procedural protections has made it harder to deploy state anti-SLAPP laws in federal court, because many courts of appeals have now held, in disagreement with the Ninth Circuit, the state anti-SLAPP laws cannot be applied in federal court because that the special motions to dismiss to be at odds with summary judgment standards under Rule 56. And even when dismissals are based on standards that are consistent with Rules 56 or 12, a number of courts have refused to allow attorney fee awards because the statutes provide for them when an anti-SLAPP motion is granted.
Because Virginia’s revised anti-SLAPP law provides for fees not tied to prevailing under an expedited dismissal procedure, there is reason to believe both the immunity and the attorney fee provisions might be applied when suits against the exercise of free speech rights are filed in federal courts in Virginia as well as when they are pursued in state courts. This is a change that other states should certainly consider.
