Amy G. Gore—Senior Attorney
The Virginia General Assembly has extended a grant of immunity from liability for certain otherwise defamatory statements in an amendment to Va. Code § 8.01-223.2 (Westlaw 2018). Previously, the anti-SLAPP (strategic lawsuit against public participation) statute extended immunity to claims for tortious interference with contract and similar theories when brought over a statement made at a public hearing or similar proceeding. Such statements were subject to an immunity defense unless uttered with knowledge of falsity or reckless disregard of falsity. The amendment makes two significant changes.
First, the type of claims to which the statutory immunity applies now include common law defamation claims and 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." Va. Code Ann. § 8.01-223.2 (A). Second, exempt from the grant of statutory immunity are statements made with the actual or constructive knowledge of their falsity, the standard currently applicable to determinations of privilege. This legislation creates a qualified immunity from liability for defamatory statements that fall within the statute's scope. Remaining at common law is an absolute privilege from liability (to which the "malice" exception does not apply) for statements made during public hearings that concern legislation, as opposed to government meetings that are merely supervisory or administrative in nature. In a traditional defamation action involving a public figure, New York Times v. Sullivan, 376 U.S. 254 (1964), actual malice standard must be satisfied before liability can be found. Virginia has extended that defense to a statement that 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.
A successful defendant who can assert this statutory immunity may be entitled to reimbursement of his or her attorney's fees. Va. Code Ann. § 8.01-223.2(b). The amendment appears to be designed to significantly expand Virginia's anti-SLAPP statute, which had previously been limited to statements made at public hearings, and will almost certainly lead to an uptick in plea-in-bar hearings seeking quick dismissals and fee awards.
Unlike other jurisdictions, Virginia's statute provides for no special procedures for judges to make an early assessment of a plaintiff's probable success. Compare Va. Code Ann. § 8.01-223.2 with Cal. Code Civ. Proc. § 425.16 (allowing for a special motion to be filed 60 days within service of a complaint). Nevertheless, it is a significant grant of protection for defendants in a defamation claim.