Lawsuits turn spotlight on anti-SLAPP law

By Peter Vieth
BridgeTower Media Newswires
 
RICHMOND, VA — A California congressman and his multiple libel lawsuits in Virginia courts have triggered a nationwide explosion of satire while increasing pressure to beef up a Virginia law designed to discourage baseless defamation actions.

Free speech advocates say Virginia has one of the weakest anti-SLAPP statutes in the nation. SLAPP stands for “strategic lawsuit against public participation.” An anti-SLAPP law is designed to discourage frivolous libel claims, often labeled as SLAPP suits. Advocates say anti-SLAPP laws curb free speech bullies, but opponents contend such laws give an unfair advantage to irresponsible critics.

Legislation is expected in the 2020 General Assembly to address the current law, but lawmakers may be hesitant to offer new language amid widespread attention to a stream of Virginia litigation filed by Rep. Devin Nunes, R-Calif.

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‘Libel tourism’

Virginia has had an anti-SLAPP law only since 2017. Del. Terry G. Kilgore, R-Gate City, and Sen. Glen H. Sturtevant Jr., R-Chesterfield, carried identical bills that year. As amended, Virginia Code § 8.01-223.2 provides immunity protection for defamation claims based on statements “regarding matters of public concern” that would be protected under the First Amendment.

There is no express provision for an early hearing on an immunity defense. And, while the statute allows an award of attorneys’ fees and costs when a defendant is declared immune, a fee award is not mandatory.

Critics, including free speech advocate Paul Levy with the group Public Citizen, say Virginia’s weak law “attracts libel tourism.” They point to Nunes’ lawsuits against media outlets and the defamation action brought by actor Johnny Depp against his ex-wife. Both Nunes and Depp are Californians who chose to sue in Virginia.

Others agree Virginia’s law needs more teeth.

“The whole idea now that we’ve got billionaires and rich people who can litigate people into the ground is a misuse of our legal system and is destructive of people’s right to speak,” said Mark K. Cathey of Roanoke, who described himself as an “annoyed defense lawyer.”

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Resistance

Opponents say anti-SLAPP laws can curb the rights of businesses hammered by loose-tongued critics. Kilgore said he faced opposition to his anti-SLAPP legislation in 2017. “There’s a lot of folks who didn’t want anything passed,” he said.

Sen. Mark D. Obenshain, R-Harrisonburg, was quoted in news accounts at the time saying SLAPP protections could hinder small business.

“There are remedies for filing frivolous lawsuits,” said Charlottesville attorney Thomas Albro, who has represented plaintiffs for years in defamation actions. “I don’t know that we need another statute on that subject.”

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Nunes & Depp

Inspiring the current push for more protection are some high-profile Californians.

Nunes, the California congressman, has filed three actions in Virginia. He sued his hometown newspaper, The Sacramento Bee, in Albemarle County Circuit Court. He sued Twitter and two anonymous tweeters in Henrico County Circuit Court. And, on Dec. 3, he sued CNN in Richmond federal court. A former Nunes aide sued Politico in Henrico County in November, using the same attorney as Nunes, Steven S. Biss of Charlottesville.

Biss’ lawsuits are known for rhetorical flair. The one against CNN was no exception: “CNN is the mother of fake news. It is the least trusted name. CNN is eroding the fabric of America, proselytizing, sowing distrust and disharmony. It must be held accountable,” Biss wrote.

The other well-known plaintiff is “Pirates of the Caribbean” lead Johnny Depp. Depp sued his ex-wife, actress Amber Heard, in Fairfax Circuit Court contending her published essay on domestic abuse was “plainly” referring to him.

Early motions to send the Depp case and the Nunes-Twitter action to California failed. Both Fairfax Chief Circuit Judge Bruce D. White and Henrico Circuit Judge John Marshall rejected venue challenges.

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Tweet storm

Nunes’ litigation has made him a lightning rod. A single citation to a Virginia Supreme Court opinion in a non-party brief triggered a social media firestorm last month.

The 10-page brief filed in Henrico County Circuit Court went viral when tweeters spotted the phrase, “Director of Butt Licking.” The term was the basis of a Virginia defamation case resolved in 1998.

Scores of social media posters used the title to mock Nunes. The hashtag version of the moniker rose to the third most popular Twitter topic on Nov. 27.

Fairfax lawyer Scott Surovell – a state senator – authored the brief in the Nunes litigation and enjoyed his own Twitter boost from the social media sensation. He said his roster of Twitter followers went from about 6,500 to 14,000 in one day.

Surovell represents Democratic strategist Adam Parkhomenko, who is resisting Nunes’ effort to examine Parkhomenko’s files to learn the identity of the Twitter parodists.

A similar motion to quash is expected from a law firm hired through a fundraising effort to defend the parody Twitter accounts “Devin Nunes’ Cow” and “Devin Nunes’ Mom.” Levy says his organization plans to file an amicus brief opposing that Nunes subpoena.

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Legislation to come

The office of state Sen. John Edwards, D-Roanoke, has confirmed he plans to urge a stronger Virginia anti-SLAPP law. Surovell said he would be a supporter.

“I think this case really highlights the need for one,” Surovell said. He said Nunes’ Twitter lawsuit goes against a tradition of protection for political speech.

“People have been making fun of politicians for centuries. If you get into this business, you’ve got to have a thick skin,” Surovell said.