What do Johnny Depp, California Congressman Devin Nunes, and Confederate statue defender Edward Tayloe II all have in common?
This year, they all filed defamation lawsuits in Virginia. Depp sued his ex-wife Amber Heard for allegedly defaming him in a Washington Post op-ed in which she wrote about being a victim of domestic violence. Nunes sued both Twitter and his hometown newspaper, The Fresno Bee, for various perceived slights. And Tayloe sued UVA associate professor Jalane Schmidt, reporter Lisa Provence, and C-VILLE Weekly for writing about his family’s slave-owning past.
This bizarre collection of cases highlights the weakness in Virginia’s rules concerning defamation lawsuits. All of these suits have been called “strategic lawsuits against public participation,” commonly referred to by the acronym SLAPPs.
In their statement about the Tayloe case, the ACLU described the suit against Schmidt as a typical SLAPP: “litigation intended to silence, censor and intimidate critics out of the marketplace of ideas by burdening them with the cost of a lawsuit they may not be able to afford.”
A recent high-profile SLAPP in West Virginia involved late-night TV host John Oliver, who was sued by coal tycoon Bob Murray after Oliver’s show “Last Week Tonight” aired an episode about Murray’s business practices. Oliver described the SLAPP in layman’s terms—“Obviously the lawsuit was a bullshit effort to silence us,” he said in a follow-up segment on the show.
“Winning the case was never really his goal,” Oliver said, arguing that Murray simply hoped his lawsuit would intimidate and inconvenience “Last Week Tonight.” “Lawsuits are like famous Instagram pugs,” Oliver said. “They don’t have to work to be considered very, very successful.”
Thirty-one states have adopted legislation—known as anti-SLAPP laws—to prevent these kinds of lawsuits from being filed. Virginia expanded its anti-SLAPP legislation in 2017, but advocates say the new statute still isn’t strong enough to be effective.
Evan Mascagni, policy director at the Public Participation Project, highlights two important components of strong anti-SLAPP statutes that are absent from the Virginia law: a mechanism for frivolous cases to be dismissed before the trial begins, and a provision that requires unsuccessful defamation plaintiffs to pay the attorney’s fees of the defendant.
In the Tayloe case, ACLU lawyers representing Schmidt argued that the case should be dismissed through the anti-SLAPP law. But although an Albemarle County Circuit Court judge found that there was no legal basis for the defamation claims, he declined to rule on whether the case was a SLAPP.
Jen Nelson, co-director of the UVA School of Law’s First Amendment Clinic, attributes that decision to Virginia’s weak anti-SLAPP statute.
In a state with stronger anti-SLAPP laws, she says, the Tayloe case might have been dismissed earlier and Tayloe might have been forced to foot the bill for Schmidt and Provence’s attorneys. That didn’t happen.
In fact, Virginia’s anti-SLAPP law is so weak that the state has become a popular site for non-Virginia residents to file defamation claims that they fear might not pass muster in other states.
“Forum shopping is when a plaintiff will seek to file a SLAPP in a state where there’s no protection against SLAPPs, or there’s very weak protection against SLAPPs,” Mascagni says. “We see that all the time.”
Nunes and Depp are obvious examples, Mascagni says. Both are California residents, but California has some of the country’s strongest anti-SLAPP laws, and so both chose to file in Virginia.
The connection to Virginia is tenuous in both cases. Depp can sue Heard, another California resident, in Virginia because “the op-ed at issue there was published by the Washington Post, who have printing presses in Springfield, Virginia,” Nelson says.
In October, a judge ruled that Nunes’ suits against his hometown paper, The Fresno Bee, and two anonymous Twitter parody accounts, Devin Nunes’ Cow and Devin Nunes’ Mom, could take place in Virginia. Charlottesville-based lawyer Steven Biss is representing Nunes in both cases.
“If a plaintiff is filing what could potentially be a SLAPP in Virginia, when there’s no real connection to the state of Virginia, one can only assume that they did that to avoid a stronger state anti-SLAPP law,” says Mascagni. “Where does Devin Nunes live, California, right? He doesn’t want to file that lawsuit in California.”
Nelson says she believes the problem is on the radar of the state legislature, and that she “wouldn’t be surprised” if the incoming majority-Democrat government worked toward legislation to strengthen Virginia’s laws.
For now, though, Virginia will remain an appealing destination for those hoping to file intimidating defamation cases. “If your goal is to punish the defendant for having spoken out or made a statement on a matter of public concern,” Nelson says, “to drag them through litigation for as long as possible, and make them pay a lot in attorneys’ fees, then Virginia right now is one of the states where you can do it pretty successfully.”