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Amended most recently in 2020, Virginia’s anti-SLAPP law creates immunity from civil liability for individuals facing claims of trade libel, “tortious interference” with an existing contract, and defamation based solely on statements that are made either to third parties regarding “matters of public concern that would be protected under the First Amendment”  or at public hearings “concerning matters properly before” the government body. Va. Code Ann. § 8.01-223.2(A) (2020).

Unlike most anti-SLAPP laws, the Virginia law still fails to identify any special procedures allowing a defendant to invoke these protections at an early stage of the proceedings.  The law was amended in 2020, however, to allow for the award of reasonable attorneys’ fees and costs to an individual who has a subpoena quashed under the law.  It is unclear how this new provision works in practice.

The law does not provide protection for statements made with knowledge of, or reckless disregard for, whether they are false. § 8.01-223.2(A).

When a lawsuit is dismissed or a subpoena is quashed under the statute, the defendant “may” be awarded reasonable attorney’s fees and costs. § 8.01-223.2(B). The law does not specify whether a stay of discovery is available.

Virginia’s anti-SLAPP law does not address whether a trial court’s decision on an anti-SLAPP motion is immediately appealable. However, in 2020, the Virginia General Assembly amended the Virginia Code to provide a right to immediately appeal an order denying a defendant’s motion to prevent a case from moving forward based on various types of immunity, such as sovereign immunity or qualified immunity. § 8.01-670.1(B).  Whether this new provision permits a party to immediately appeal a trial court’s decision on a motion asserting immunity under Virginia’s anti-SLAPP law has not yet been addressed by a Virginia court.

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