Anti-SLAPP protection

Virginia’s anti-SLAPP law is Code § 8.01-223.2.

Law summary

Virginia’s anti-SLAPP law is relatively weak. The law safeguards statements made in good faith but does not provide expedited hearings or mandatory stays of discovery. As a result, journalists can face time-consuming and invasive discovery processes and lawsuits that drag on for years.

Legal actions

Virginia’s anti-SLAPP statute lacks any procedural integrity. As a result, the law is sparse.

• Limited demurrer or regular motion to dismiss: SLAPP defendants may file a demurrer, which does not allow for defendants to attach affidavits or new evidence. When a defendant does this, it signals to the judge their belief that the lawsuit is a SLAPP.
• Attorney fees: If a publisher has a lawsuit against them dismissed pursuant to the statute, a defendant may be awarded legal fees. Attorney’s fees and costs are not mandatory, however.

Helpful cases

Due to the lack of specific protections, Virginia’s anti-SLAPP law is weak. As a result, state courts have no standard method to determine whether a claim is a SLAPP, and their decisions subsequently appear less consistent.

Harless v. Nicely (2024)

Jamie Harless, a high school football coach, sued for defamation against four employees from Roanoke County Public School, including two principals, for voicing complaints that the coach made inappropriate statements towards opposing players during football games. The defendants filed a demurrer and plea of immunity under Virginia’s anti-SLAPP statute to challenge the legal sufficiency of Harless’ case. A trial court ruled the school employees spoke on a matter of duty and sustained the demurrer. Harless appealed, and the school employees appealed to recover their attorney fees from Harless. An appellate court upheld the prior ruling in favor of the employees, but returned the case for the trial court to determine whether the defendants were entitled to attorney fees, and if so, how much.

Greene v. City of Portsmouth (2024)

Portsmouth Police Chief Angela Greene led an internal investigation against Black community leaders, including a state senator, for leading a demonstration and allowing protestors to vandalize a confederate monument in 2020. Greene charged the group with felony property crime charges, and in response, the Portsmouth city manager terminated Greene’s contract. Greene sued those involved for tortious interference. The city then filed a demurrer and special plea under Virginia’s anti-SLAPP law. A trial court sustained the city’s demurrers and pleas and dismissed all claims against them; however, it did not award attorney fees to all parties because not all disputed statements contained “actionability.” Greene then amended her complaint to a defamation claim against the city. An appellate court upheld the trial court’s ruling and dismissed Greene’s claim because she could not prove actual malice.

Rolofson v. Fraser (2024)

At the end of a romantic relationship by Army officers Samuel Rolofson and Brittany Fraser, Fraser reported that Rolofson had harassed her, and a commanding officer led an internal investigation and ordered a hearing. During that hearing, Fraser made numerous statements regarding Rolofson’s behavior and a board recommended his dismissal from the Army. Rolofson was separated from the Army and sued Fraser for defamation. Fraser filed a demurrer and plea using Virginia’s anti-SLAPP statute. A trial court ruled in Fraser’s favor but did not apply immunity provided under the anti-SLAPP statute because the hearing was not public or before a governing body. The court also dismissed Rolofson’s claim because he did not prove malice. Rolofson appealed and so did Fraser, seeking attorney fees. An appellate court held the trial court’s conclusion, arguing Fraser’s statements were made through an internal grievance procedure and as a result she did not communicate to the public or “to advance a social point of view beyond the employment context.” The appellate court dismissed Rolofson’s defamation claim and denied Fraser attorney fees.

Legislative activity

Virginia’s anti-SLAPP law was first passed in 2007 and only applied immunity to certain statements and claims like business conspiracy and tortious interference. In 2023 the statute was amended to provide protection against all torts targeting statements made in connections with matters of public concern.

Of note

Virginia received a C+ from the Institute for Free Speech.