Virginia Needs a Strong Anti-SLAPP Law to Stop Bogus Lawsuits

Sometimes lawsuits get filed to chill speech or harass people, rather than resolve legitimate legal disputes. Unfortunately, this trend has increased over the past few decades. Since the 1980s, these lawsuits have been called SLAPPs—or Strategic Lawsuits Against Public Participation.

The best solution to stop SLAPPs are strong anti-SLAPP laws. The specifics vary by state, but in general, anti-SLAPP laws allow courts to expedite cases in which a defendant’s free speech rights are at risk. The laws also allow defendants who win anti-SLAPP motions to get their legal fees paid.

This year, the Commonwealth of Virginia has a chance to pass a strong anti-SLAPP law by passing H.B. 759. This bill would be a huge improvement over Virginia’s current law, and we’re asking EFF supporters who are Virginia residents to contact their lawmakers and express their support.

Courtroom abuses like these have flourished because Virginia’s current law doesn’t prevent them. Virginia has no special procedure to determine whether a case is a SLAPP, and then quickly resolve it. The law only covers certain types of claims, whereas strong anti-SLAPP laws apply to a broad range of speakers, speech, and forums. And finally, there’s no mandatory fee provision—meaning that even if individuals prevail over SLAPP lawsuits, they could face bank-busting legal fees.

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Virginia has a particular need for a strong anti-SLAPP law. In recent years, it’s become a magnet for questionable legal claims. Some recent examples—all from 2019—include cases like these:

• U.S. Representative Devin Nunes, of Bakersfield, Calif., has filed several lawsuits in Virginia, seeking hundreds of millions of dollars in damages, including against CNN, his hometown newspaper, the Fresno (Calif.) Bee, Twitter, and two Twitter users who created the parody accounts @DevinCow and @DevinNunesMom.  
• Actor Johnny Depp sued his ex-wife Amber Heard for $50 million in Virginia after she published an op-ed in The Washington Post about domestic abuse.
• A man sued a Charlottesville, Virginia weekly newspaper for publishing a news story about his support for preserving Confederate monuments in Charlottesville, as well as the reporter who wrote the story, and a University of Virginia professor who commented on the issue. The case was dismissed, but the judge would not consider the existing Virginia anti-SLAPP statute or treat the case as a SLAPP.
• A San Francisco doctor sued her former customers, who complained about her shoddy work in online forums like Yelp, in Virginia.

Courtroom abuses like these have flourished because Virginia’s current law doesn’t prevent them. Virginia has no special procedure to determine whether a case is a SLAPP and then quickly resolve it. The law only covers certain types of claims, whereas strong anti-SLAPP laws apply to a broad range of speakers, speech, and forums. And finally, there’s no mandatory fee provision—meaning that even if individuals prevail over SLAPP lawsuits, they could face bank-busting legal fees.

Even when the defendant prevails, without strong anti-SLAPP laws, defamation lawsuits can be ruinous. In 2012, a Washington D.C. contractor sued a Fairfax, Virginia, homeowner, Jane Perez, over a negative Yelp review. At first, a judge issued an injunction ordering her review to be deleted. That was overturned by the Virginia Supreme Court. But Perez still had to go through a jury trial, which ultimately ended with a ‘take-nothing’ verdict.

But the damage had been done, as Public Citizen, which represented Perez at the appeal level, later explained to the Virginia legislature:

“Being a defendant in this case ruined our client’s life. She had left the service with an honorable discharge while suffering from a stress disorder, and having to respond to the lawsuit increased her stress. But even more important, she was working for the air force in a civilian capacity, and having to report that she was a defendant in a lawsuit apparently cost her security clearance and she lost her job.

Had Virginia had an anti-SLAPP statute in place, she would have had an extra opportunity to obtain a private lawyer, even without the generosity of this retired lawyer, because of the prospect of an award of fees. And the contractor would have had an extra reason not to put Jane Perez through this ordeal because Perez’s prevailing on her statutory immunity against being sued for defamation could have led to an award of attorney fees against him.

The increase in SLAPP lawsuits is one of the reasons why, in 2018, EFF joined the Protect the Protest coalition. EFF has also long-supported the Public Participation Project’s work to pass a federal anti-SLAPP bill. We’re working with other non-profits to build strong anti-SLAPP laws at both the state and federal level, and to protect organizations and individuals who are victimized by SLAPPs.

If you live in Virginia, now’s a chance for a big step forward. Tell your lawmaker you want to pass H.B. 759, and protect free speech in Virginia.

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Defend Free Speech in Virginia