Anti-SLAPP Speech Protections Pushed in Virginia Legislature

RICHMOND, Va. (CN) – Virginia lawmakers advanced a bill Monday aimed at preventing frivolous litigation that could chill speech, in the wake of headline-making defamation lawsuits filed in state courts by out-of-state celebrities and politicians.

Republican Congressman Devin Nunes filed defamation claims against Twitter, a political consultant and a parody account called “Devin Nunes’ Cow” in Henrico County Circuit Court last year.

The Virginia State Capitol in Richmond. (Photo via Anderskev/Wikipedia Commons)

Meanwhile, Hollywood star Johnny Depp filed suit last year in Fairfax County Circuit Court against his ex-wife, actress Amber Heard, over an op-ed she wrote in The Washington Post about the backlash she experienced after speaking out about domestic abuse. Her article never identified Depp by name, but he says it was clearly about the accusations she’d made against Depp as their marriage unraveled in 2016.

While attorneys representing Nunes and Depp have not commented on the reason for filing in Virginia state courts, free speech advocates point to the state’s weak strategic lawsuit against public participation, or anti-SLAPP, laws, which makes it more costly to fight against defamation claims and can lead to chilled speech.

But legislation proposed by Virginia Delegate Schuyler VanValkenburg, D-Richmond, hopes to curb this practice of shopping defamation cases in Virginia courts.

“One of the big things coming out of this session is accentuation of the democratic sphere, whether in voting or being able to talk in the public space,” VanValkenburg said in a hallway of the Virginia Capitol building Friday.

His bill creates a motion to dismiss available to defendant within 45 days of a frivolous defamation case being filed when good cause is shown. It also allows a delay for discovery, the expensive and burdensome part of SLAPP suits, early in the case. In addition, the bill carves out a way to seek attorneys’ fees and other financial remedies for the defendant.

The bill was first heard Friday. Mark Dix, an attorney with the Commonwealth Law Group and representative with the Virginia Trial Lawyers Association, said his group appreciated the intent of the bill but was worried about the approach.

Dix called the legislation a “Frankenstein of a bill” that was based off a similar law in Texas. While the Lone Star State is often praised for its anti-SLAPP protections, the legislation there created different problems.

“Since it was passed [in Texas], it has clogged the court systems,” he said, pointing to an increase in appeals. “If you’re a defense lawyer, the first thing you’re going to do is try and make any claim a SLAPP suit and get a motion to dismiss.”

While a Virginia House committee failed to approve the bill Friday, VanValkenburg made some edits over the weekend at the request of committee members. This included removing some language about affidavits and clarifying how the law impacts online reviews.

The bill passed through the committee on a 5-2 vote Monday afternoon. VanValkenburg is optimistic as the measure goes to the next legislative step, promising to ensure all citizens have their voice heard in the public arena.

“I hope we can continue to have forward momentum in full committee,” he said in a text message.

While past efforts to address the state’s existing anti-SLAPP law were often watered down by the time they made it to the governor’s desk, free speech advocates are happy with Monday’s version of the bill.

“We’re still very supportive,” said Alison Friedman, who represented the International Corporate Accountability Roundtable in helping to develop the bill. The group tracks anti-SLAPP laws across the country and pointed to Virginia being the venue for several lawsuits that have attempted to silence critics.

Paul Levy, a lawyer with the free speech advocacy group Public Citizen, also threw his support behind the legislation.

“This bill would represent a major advance for the protection of free speech, certainly compared to where it is now,” Levy said. “It would put the Virginia law among the strongest protections for free speech.”

Levy is all too familiar with Virginia’s history of SLAPP suits. He has said the state has been a kind of clearinghouse for such suits and while he’s followed other attempted changes by lawmakers, this is the first time he’s been excited by an attempt to address the problem.

“This is a law that’s worth spending effort to make it pass,” Levy said.

The House of Delegates bill has an ally in the Virginia Senate from someone who might seem to be on the other side of the issue: Senator Scott Surovell, D-Mount Vernon, a lawyer who handles defamation cases.

Surovell doesn’t have a companion bill in the Senate – another senator has a similar measure – but he spoke to the importance of addressing the issue. He’s representing Democratic operative Adam Parkhomenko after Nunes subpoenaed him in connection to the Twitter case.

“Virginia has become a magnet for crappy lawsuits,” Surovell said at a press conference announcing the bill.

While he admitted the bill’s passage might hurt his bottom line as a lawyer, he sees it as a matter of fairness.

“It’s been great for business for me, I’ll continue to make money if it keeps happening, but my clients will keep paying the bills [and] it’s not fair to them,” the senator said. “We need to have more remedies and balances in the system.”

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