California Congressman Devin Nunes — who made news with his lawsuit against Twitter over a series of parody accounts — has now brought a second defamation suit, this time seeking $150 million from McClatchy based on a story that appeared in his hometown newspaper, The Fresno Bee.
Rep. Nunes, Twitter and The Fresno Bee are based in California, which has many people asking why both lawsuits were filed in state court in Virginia.
While we can’t speak to the grand strategy of the congressman’s counsel, the cases highlight one unfortunate feature of Virginia law: the lack of an effective “anti-SLAPP” law.
The essence of a SLAPP lawsuit — which stands for Strategic Lawsuit Against Public Participation — is that the plaintiff brings it not to win, but to intimidate the defendant. The first cases of this kind involved defamation lawsuits brought against public critics of land developers with the intent to silence them.
Close to 30 states have anti-SLAPP statutes, as do the District of Columbia and Guam. They vary in scope and design, but the vast majority allow a defendant to have the case dismissed earlier than other types of lawsuits, and before the defendant has to pay for a costly discovery process.
Virginia’s anti-SLAPP law doesn’t do that. Until very recently, it merely provided immunity from a defamation lawsuit for statements made in certain government contexts, like at a city council meeting. Fortunately, it was expanded in 2017 to cover all First Amendment-protected statements made to third parties — such as to journalists, or statements or reporting by journalists — about matters of public concern and to allow courts to force a losing plaintiff to pay the defendant’s legal bills. But under Virginia’s law, a defendant only gets to raise its defense at the same stage as any other case, so it doesn’t deter SLAPP suits in quite the same way as most other state laws, which allow for an early motion to dismiss before discovery.
The Virginia law also has another idiosyncratic provision. Under federal constitutional law first established in the landmark New York Times v. Sullivan Supreme Court case, defamation lawsuits against public figures can only proceed if a plaintiff can show “actual malice,” meaning that the defendant knew the statement was false or acted recklessly.
The Virginia statute incorporates part of that concept, but it says that immunity will not apply “to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false.”
The term “constructive knowledge” could further weaken the law. While Virginia courts have not defined the term as used in the Virginia anti-SLAPP statute, some courts have held that the phrase in other contexts means effectively that knowledge can be inferred by the circumstances, for instance if a credible third party had informed the publisher that the information may be false.
Despite the relatively weak anti-SLAPP law in Virginia, Rep. Nunes still faces an uphill battle as a matter of U.S. constitutional law. As a public figure, he has to establish that the defendants acted with actual malice, and that the statements at issue were false and not satire. Federal law also protects Twitter from state defamation claims over tweets by its users.
Both Nunes cases also raise serious policy concerns, particularly in light of President Trump’s repeated vows to “open up” libel laws and Supreme Court Justice Clarence Thomas’s recent dissent saying he believed the Sullivan case was wrongly decided.
The First Amendment places limits on politicians seeking to bring defamation claims against their perceived critics precisely because of the temptation to use such lawsuits as a tool of censorship and intimidation. These limits provide “breathing room” for vigorous public debate and ensure that speakers without the means to pay for an expensive lawyer can still speak on matters of public interest without fear of a ruinous lawsuit. Anti-SLAPP laws serve this same purpose.
The Sullivan case was only one of several lawsuits that Southern politicians brought against civil rights activists seeking to “starve the civil rights movement of the oxygen of national attention.” While Sullivan is still settled law, the Nunes lawsuits starkly illustrate the need to maintain its vitality, along with effective state-level anti-SLAPP laws.