by Paul Alan Levy
With the signature of Governor Terry McAuliffe having been added last week, Virginia has adopted a modest improvement to its very narrow anti-SLAPP statute. The new law, SB 1413, is not nearly as strong as in the anti-SLAPP laws in California and other model states, but it has something that we have not seen in other state’s anti-SLAPP laws: a stiffening of the substantive standard for libel plaintiffs.
Under Section 8.01-223.2 of the Virginia Code as it stands today, claims for tortious interference with contract and similar theories, when brought over a statement made at a public hearing or similar proceeding, are subject to an immunity defense unless uttered with knowledge of falsity or reckless disregard of falsity; when such claims ate dismissed pursuant to this immunity, the plaintiff may be awarded reasonable attorney fees. Effective July 1, 2017, however, under SB 1413, the immunity will protect against claims for defamation, and it will protect any statements “regarding matters of public concern that would be protected under the First Amendment [and that] are communicated to a third party.” The exception to the immunity has been slightly rephrased: It does not apply to “statements made with actual or constructive knowledge that they are false, or with reckless disregard for whether they are false.”
Unlike California and other states, the Virginia statute does not create a special procedure for filing anti-SLAPP motions requiring judge’s to conduct an early assessment of the plaintiff’s probability of success; there is no presumptive limitation of discovery, and no provision for an interlocutory appeal when anti-SLAPP motions are denied. Virginia does not have a summary judgment procedure, although some Virginia practitioners have described to me a special procedure called “plea in bar” which would allow an immunity to be raised early in the case and resolved either through affidavits or even through a trial-type hearing.
The provision for an award of attorney fees in favor of a defendant who secures dismissal under the anti-SLAPP law remains permissive, rather than mandatory under the stronger versions of state anti-SLAPP laws. That approach is disappointing. But it remains to be seen whether Virginia will follow the example of the DC Court of Appeals which held last year in Doe v. Burke that DC’s anti-SLAPP law, which also makes fees permissive and not mandatory, creates a presumption in favor of awarding attorney absent special circumstances making such an award improper.
There is one respect in which the new Virginia anti-SLAPP law does something for libel defendants that we have not seen elsewhere. The immunity created by the bill sounds an awful lot like the actual malice requirement. And unlike First Amendment law pursuant to New York Times v. Sullivan and its progeny, which requires proof of actual malice when the plaintiffs is a public figure, under Virginia law that defense will now apply whenever a statement is communicated to a third person – that is, it is published, which is a fundamental requirement for all libel claims — and it is about a matter of public concern and protected by the First Amendment. And this defense would apply not only at the preliminary stage of a case when an special plea in bar proceeding is invoked; it would apply to a trial on the merits of any libel claim in the state.
We owe thanks to Yelp for promoting this bill in the state legislature. On behalf of Public Citizen, I appeared before the state senate committee on courts to testify in favor of the bill (and, indeed, to try to improve it) and urged the governor to sign the bill because, despite its shortcomings, it represents an improvement on current law. It is my hope that the Virginia General Assembly will continue to strengthen the state’s statutory protection for consumers’ free speech rights against baseless litigation that seeks to make it too expensive to criticize businesses.
