26 May 2022

What is the state of Virginia's anti-SLAPP law?

The First Amendment to the U.S. Constitution provides for the right to speak and to petition. Free speech and healthy debate are vital to the well-being of a democracy. In fact, the Supreme Court of the United States has declared that the right to petition the government is the foundation of their democracy.


SLAPP means Strategic Litigation Against Public Participation. These harmful lawsuits target those who communicate with the government or speak out on issues of public concern, hindering free speech and healthy debate. SLAPP is used to silence and harass critics, forcing them to spend money defending these baseless lawsuits. 


An anti-SLAPP Act is designed to provide relief from SLAPP proceedings, to prevent people from using the potential threat of courts and proceedings to intimidate those who exercise the rights of the First Amendment to the United States Constitution. When it comes to the press and individual journalists, those can use the anti-SLAPP law to protect themselves from the financial threat of unfounded defamation cases caused by the subject matter of businesses and research articles. 


Under most anti-SLAPP laws, speech is a matter of public interest, so defendants file a motion to dismiss the proceedings. Next, the plaintiff needs to demonstrate the possibility of winning the proceedings, showing evidence that may lead to a favourable judgment. If the plaintiff fails to meet this burden, many laws allow the defendant to recover the attorney's fees from the plaintiff.


Virginia's anti-SLAPP law was recently amended in 2020 to provide protection for the public facing trade libel, "tort interference" with existing contracts, and First Amendment-protected public based only on claims made to any third party referred to Matters of Concern, or at a public hearing on matters formally referred to government agencies.


Unlike most anti-SLAPP statutes, Virginia law still does not identify special procedures that allow defendants to invoke these protections early in their trial. However, the law was amended in 2020 to allow reasonable attorneys' fees and costs to be paid to those who dismiss a subpoena under the law. It provides no protection against statements made knowingly or grossly negligently disregarding their inaccuracy. 


Virginia's anti-SLAPP statute did not say whether the trial court's decision on the anti-SLAPP motion could be immediately appealed. However, in 2020, the Virginia Legislature amended the Virginia Code to grant immediate appeal of an order dismissing a defendant's motion based on various immunities such as state immunity or qualified immunity


For whatever reason, Virginia has no well-established appeals precedent for defamation, either libel or libel. Instead, Virginia lawyers turned to federal and Supreme Court precedent to guide defamation suits. Many states, including Virginia, have anti-slapping laws designed to prevent people from using courts and lawsuits to intimidate speakers into speaking out on matters protected by the First Amendment.


In spite of having freedom of speech in this country, it is not possible to slander a person. Virginia's anti-slapping law is considered weak compared to other states because it doesn't provide a mechanism for mandatory hearings to try to dismiss slap lawsuits or suspend investigations until it is determined whether the lawsuit violates anti-SLAAP policy. Virginia law allows reimbursement of attorney's fees for litigants who demonstrate that they are entitled to immunity under the law.


With regard to the current Depp v. Heard case, the Fairfax Circuit Court where the trial is taking place, has stated that Heard could call the anti-SLAPP law, to which the jury could respond by entitling her immunity for her statements in the case that she was not doing so with reckless disregard of the truth. Whereas Depp side would argue that she did act with malice, trying to defame his ex-husband with public writings.

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