Virginia legislators pass bills aimed at dismissing frivolous lawsuits restricting First Amendment rights

The House of Delegates and the Senate in the Virginia General Assembly passed separate bills last Tuesday that would make it easier for defendants, including news organizations, to quickly dismiss harassing lawsuits aimed at restricting their First Amendment rights.

While both bills would improve protections against strategic lawsuits against public participation, or SLAPPs, there are differences between them that legislators need to settle in a conference period before a unified bill could go to Gov. Ralph Northam for his signature.

The anti-SLAPP bills were introduced in response to a spate of SLAPPs, including high-profile defamation lawsuits by actor Johnny Depp and Rep. Devin Nunes (R-Calif.). In the past year alone, Depp, Nunes, and other litigants filing defamation cases sought nearly $1 billion in damages in Virginia courts. Virginia’s current anti-SLAPP law provides legal “immunity” for certain claims based on speech regarding a matter of public concern or at a public hearing. Crucially, however, it fails to identify a procedure, like a special motion to dismiss, that would give the defendant a chance to dismiss the case at an early stage before costly discovery.

Virginia’s efforts to strengthen its anti-SLAPP law are especially timely: Last week, an Albemarle County Circuit Court judge presiding over Nunes’ suit against McClatchy said she would require the media company to comply with Nunes’ discovery request to disclose information about its business dealings in Virginia before she rules on McClatchy’s motion to dismiss the case.

Lawsuits like the one Nunes is litigating against McClatchy impose significant costs and chill protected speech. Anti-SLAPP laws provide defendants a way to quickly dismiss meritless lawsuits and discourage the filing of SLAPPs.

Thirty-one jurisdictions across the United States currently have some form of anti-SLAPP protections. Virginia’s current anti-SLAPP law leaves the state open for forum-shopping, where a person can potentially bring their claim in multiple states, but chooses the one that will be the most favorable to their claims.

Below is a breakdown of both bills and how Virginia legislators could improve them.

House Bill: The House of Delegates passed HB 759, sponsored by Del. Schuyler T. VanValkenburg (D-Henrico), by a 64-34 vote. This bill establishes that a party who believes a SLAPP has been filed against him or her may file a special motion to dismiss. Once the special motion is filed, it would stay all discovery proceedings related to the claim. The bill also requires the mandatory award of attorney’s fees and costs when a judge dismisses the SLAPP suit, and an expedited hearing schedule on the special motion. There is, unfortunately, no way in the House bill for a party to submit affidavits in support of the special motion to dismiss, which is an important mechanism in other states’ anti-SLAPP bills to demonstrate the lack of merit in a suit.

Senate Bill: The Virginia Senate passed SB 375, sponsored by Sen. John D. Edwards (D-Roanoke), by a 40-0 vote. The Senate version also creates a “special plea” to dismiss, an automatic stay of discovery proceedings (except for limited discovery into the issues raised by the plea), and an expedited hearing schedule. The Senate bill could be read to allow parties to submit affidavits with the special motion to dismiss, but was amended in committee to allow only for permissive, rather than mandatory, attorneys’ fees.

For the Reporters Committee for Freedom of the Press, an ideal anti-SLAPP law would include the ability to file a special motion to dismiss, an automatic stay of discovery proceedings, a mandatory award of attorneys’ fees, an expedited hearing schedule on the special motion to dismiss, procedures to submit affidavits when filing the special motion, and the ability to bring an immediate appeal should the motion be denied.

Each bill will now move to the opposite chamber for consideration and a conference period before a final bill heads to the governor.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

Photo by Gage Skidmore