Anti-SLAPP Category Archives — Page 2 of 2 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

November 11, 2017

Does Virginia’s Anti-SLAPP Statute Apply to Consumer Reviews?

“SLAPP” suits are lawsuits brought primarily for the purpose of stifling criticism or intimidating those with opposing views by forcing them to incur legal-defense costs. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). The lawsuits are often disguised as defamation actions but generally have as their true purpose a desire to silence speech deemed undesirable (regardless of whether the speech is truthful). Many states have passed anti-SLAPP laws designed to turn the tables by requiring plaintiffs who bring such suits to reimburse the defendant for legal fees incurred in fighting off the action. Virginia enacted its anti-SLAPP statute only recently–the latest amendments, which allow the recovery of attorneys’ fees for the first time, became effective July 1, 2017. Consequently, not a lot is known about how the courts will interpret and apply its terms. Its language differs markedly from the anti-SLAPP laws in other states, so the Virginia courts are going to have to blaze new territory in deciding how to apply the new law.

One big question the courts are going to have to decide: does Virginia’s new anti-SLAPP law apply to consumer reviews? In the past, defamation actions tended to be brought primarily against newspapers. But now we have the Internet, where anyone can be a publisher of content, and courts are becoming increasingly clogged with defamations brought against consumers by businesses offended by negative reviews posted to Yelp, Angie’s List, or some other consumer-review site. Concerned about studies such as the one by Harvard Business School concluding that a difference of just a single star on Yelp can affect business revenues by nearly 10%, many businesses respond very aggressively to consumers who post negative reviews that bring down their average rating, sometimes resorting to litigation. Such businesses need to be reminded, however, that the First Amendment protects consumers’ right to express their personal views, no matter how negative or harmful they may be. So is this a situation where the new anti-SLAPP law might be applied?

April 27, 2015

D.C. Anti-SLAPP Statute Does Not Apply in Federal Court

by Lee E. Berlik

On September 27, 2013, the District of Columbia District Court applied D.C.’s anti-SLAPP act, D.C. Code § 16-5501 et seq., to a defamation lawsuit brought by wealthy businessman Yasser Abbas against the Foreign Policy Group and journalist Jonathan Schanzer. For those interested in the facts of the case, my earlier coverage of the case is here. On April 24, 2015, the Court of Appeals for the D.C. Circuit held that pretrial dismissal of claims brought in federal diversity cases is governed by Rules 12 and 56 of the Federal Rules of Civil Procedure, and that because the anti-SLAPP act purports to address the same question, it does not apply in federal court. Nevertheless, the court affirmed the district court’s dismissal of the case because the allegations were insufficient to state a claim for defamation under D.C. law.

The court summarized the workings of the anti-SLAPP statute as follows:

Under the Act as relevant here, a defendant may file a special motion to dismiss “any claim arising from an act in furtherance of the right of advocacy on issues of public interest.” D.C. Code § 16-5502(a). To obtain dismissal, the defendant first must make a “prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.” Id. § 16-5502(b). If the defendant makes that prima facie showing, then the plaintiff must demonstrate that “the claim is likely to succeed on the merits.” Id. If the plaintiff makes that showing, the defendant’s special motion to dismiss must be denied. Otherwise, the special motion to dismiss must be granted. See id. (As we will see, that likelihood of success requirement is important to this case.) While a special motion to dismiss is pending, discovery is stayed except for limited purposes. Id. § 16-5502(c). A defendant who prevails on a special motion to dismiss may recover the costs of litigation, including reasonable attorney’s fees. Id. § 16-5504(a).

April 13, 2015

A Brief History of Virginia’s Anti-SLAPP Statute

by Lee E. Berlik

The First Amendment guarantees, among other freedoms, “the right of the people…to petition the Government for a redress of grievances.” This right to petition is part of the First Amendment‘s free-speech protection, as it pertains to a particular form of freedom of expression. A lawsuit aimed at deterring or punishing citizens from exercising this First Amendment right, or from otherwise exercising their right to freely express their political views or engage in discourse on a matter of public concern, is known as a “SLAPP” suit. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). SLAPP suits usually don’t advertise the fact that they seek to chill the expression of ideas; they are often disguised as legitimate lawsuits for defamation or some other tort.

A majority of states have passed anti-SLAPP laws designed to facilitate the identification and early dismissal of frivolous SLAPP suits. Virginia is not one of those states. Until recently, Virginia had no anti-SLAPP law to speak of and gained a reputation among plaintiff’s lawyers as a welcoming jurisdiction friendly to questionable defamation suits. A movement is underway to fix that. A flurry of defamation lawsuits filed in Virginia by California congressman Devin Nunes inspired the introduction of House Bill 759, designed to bring Virginia’s anti-SLAPP law more in line with California’s more robust First Amendment protection. California’s anti-SLAPP law allows a defendant to make a “special” motion to dismiss if he or she can show the plaintiff’s claim arises from a statement made in connection with a public issue in furtherance of the right to free speech. If the court grants one of these special motions to strike, the anti-SLAPP statute requires the unsuccessful plaintiff to pay the defendant’s attorneys’ fees. (Attorneys’ fees are normally not recoverable in defamation actions, so this can be a powerful deterrent against meritless lawsuits.)

As of this writing, Virginia still has not enacted a traditional anti-SLAPP statute. But the law has evolved over the past 10-15 years and the trend is towards increased protection for free-speech rights. Here’s how Virginia’s anti-SLAPP protection has evolved over the years:
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October 7, 2013

Yasser Abbas’ Defamation Lawsuit Dismissed on Anti-SLAPP Grounds

by Lee E. Berlik

The District of Columbia’s anti-SLAPP act applies to actions that arise from an act in furtherance of the right of advocacy on issues of public interest. It provides that if a party makes a prima facie showing that the case involves the type of claim to which the act applies, the court will dismiss the case–with prejudice–unless the responding party can demonstrate that the claim is likely to succeed on the merits. D.C. Code § 16-5502(a)-(b). Although there has been some uncertainty as to whether D.C.’s anti-SLAPP act applies in federal court, the emerging trend has been to find that it does. On September 27, 2013, Judge Emmet G. Sullivan of the District of Columbia District Court found the statute applicable to a defamation lawsuit brought by Yasser Abbas and granted the defendant’s special motion to dismiss made under its terms.

Yasser Abbas is a wealthy businessman and political emissary for his father’s regime, the Palestinian Authority (“PA”). He sued Foreign Policy Group, LLC, and journalist Jonathan Schanzer for certain statements Schanzer made in an article he had written about the sons of the Palestinian president. The article was published in the “Argument” section of Foreign Policy Magazine and questioned whether the sons of the Palestinian president were “growing rich off their father’s system” and whether they had “enriched themselves at the expense of regular Palestinians” and U.S. taxpayers.

When the defendants responded with a motion to dismiss under the anti-SLAPP act, the first question was whether D.C.’s statute even applied in federal court, a question not yet decided by D.C.’s highest court. The issue boils down to whether the anti-SLAPP statute should be viewed as substantive or procedural, as federal courts sitting in diversity apply federal procedural laws but state substantive laws. Judge Sullivan looked to other circuits and found that many interpret similar state statutes as substantive and do apply them in federal diversity cases. Notably, the D.C. Circuit has upheld a district court decision denying a special motion to dismiss under the anti-SLAPP statute because it was not timely filed. Although that decision did not specifically hold that the anti-SLAPP statute was substantive, it implied as much. With this background, Judge Sullivan was persuaded that the anti-SLAPP law applies in federal court.

August 19, 2013

Anti-SLAPP Law Will Not Immunize Every Statement About a Celebrity

by Lee E. Berlik

Anti-SLAPP laws provide an expedited procedure for dismissing lawsuits that are filed primarily to inhibit the valid exercise of constitutionally protected speech. A defendant seeking to avail herself of an Anti-SLAPP statute must show that the allegedly defamatory statements concern a public matter or a matter of public interest. Not all statements about a person in the public eye qualify. Rather, the subject of the statement must be involved in a public controversy or be so famous that her involvement in a private dispute is a matter of public interest. A California appellate court recently addressed this issue in Albanese v. Menounos and concluded that some celebrity disputes are just none of our business and don’t require the protection of the anti-SLAPP statute.

Lindsay Albanese is a celebrity stylist who worked at NBC for several years as a stylist for Maria Menounos of Access Hollywood fame. Albanese contends that on one occasion after leaving NBC, when Albanese and Menounos ran into each other at an event, Menounos loudly proclaimed that “Dolce and Gabbana won’t lend to me anymore because they said you never returned anything.” Menounos also allegedly told someone at the party afterwards that Albanese had stolen from her while she worked at NBC.

Albanese sued Menounos for defamation, tortious interference with prospective economic advantage, and intentional infliction of emotional distress, arguing that the statements were made with malice, actual knowledge of their falsity, and with specific intent to injure Albanese’s reputation and employment. Her complaint seeks damages for injury to her personal, business and professional reputation, embarrassment, humiliation, severe emotional distress, shunning, anguish, fear, loss of employment and employability and economic loss in the form of lost wages and future earnings. Menounos moved to strike the complaint under California’s anti-SLAPP law.

July 29, 2013

Mann’s Defamation Suit Survives Anti-SLAPP Motion

by Lee E. Berlik

Well-known climate scientist Michael Mann made good on his threat to sue the National Review and columnist Mark Steyn for defamation based on statements made online questioning Mann’s global warming research. In response, the defendants filed a special motion to dismiss under D.C.’s anti-SLAPP statute, arguing that the online statements were made in furtherance of the right of advocacy on an issue of public interest. The court found that the anti-SLAPP statute did apply but nevertheless denied the motion.

Mann is a professor of meteorology and the Director of the Early System Science Center at Penn State. He is well known for his research on global warming and has published papers and books on the subject. The University of East Anglia’s Climate Research Unit (CRU) exchanged emails with Mann which were later misappropriated. In one email, a CRU scientist referred to Mann’s “nature trick” of adding in real temperatures for the last twenty years and from 1961 to “hide the decline.” Upon discovery of the emails, the University of East Anglia investigated the matter and concluded that the honesty and rigor of the CRU scientists was not in doubt but that the email referencing Mann’s “nature trick” was misleading.

In 2010, Penn State initiated an investigation of Mann and the CRU emails. The investigatory committee was comprised entirely of Penn State faculty members. Based on an interview with Mann, the committee cleared Mann of three of four charges against him. The last charge involved an allegation that Mann’s research might deviate from accepted norms. The committee interviewed an MIT professor who was critical of Mann’s work and later expressed dismay with the scope of the investigation and the committee’s analysis of the CRU emails.

November 2, 2012

D.C. Defamation Cases Continue to Meet Anti-SLAPP Statute

by Lee E. Berlik

Statements made in the course of litigation by parties to the case are absolutely privileged and cannot form the basis of a defamation action. At the same time, reporters enjoy a “fair report” privilege that allows them to report and comment on judicial proceedings without fear of defamation liability, even if they repeat the allegedly defamatory statements in their coverage of the case, provided the report is a fair and accurate description of the case. Does it follow, then, that a litigant can make defamatory comments to a reporter during the course of a case? Most courts would answer that in the negative, since the reporter is not involved in the case. But if that litigant is speaking about an issue of public interest, such as the operation of the District’s financial office, his comments may be protected by D.C.’s anti-SLAPP act.

Eric Payne, former contracting director for the District of Columbia, sued D.C.’s Chief Financial Officer, Natwar Gandhi, for wrongful termination. In an interview with The Washington Post, Gandhi claimed that he fired Payne because he was “a very poor manager,” “nasty to people,” and “rude to outsiders.” Payne then sued Gandhi and the District of Columbia alleging that these remarks defamed him. The city has indicated that it plans to file a special motion to dismiss the case under the city’s anti-SLAPP statute.

A “SLAPP” (or Strategic Lawsuit Against Public Participation) can exist in many forms but traditionally consists of a frivolous lawsuit filed by one side of a public debate against someone who has exercised the right of free speech to express an opposing viewpoint. The anti-SLAPP statute was enacted primarily to protect citizen activists from these lawsuits filed for intimidation purposes, but can be applied in any situation where the lawsuit threatens the right of advocacy on issues of public interest.

October 28, 2012

Does D.C.’s Anti-SLAPP Statute Apply in Federal Court?

by Lee E. Berlik

Former Georgia State Director for Rural Development, Shirley Sherrod, filed a defamation action in the United States District Court for the District of Columbia against bloggers Andrew Breitbart and Larry O’Connor based on a blog post allegedly portraying her as racist. The court denied defendants’ special motion to dismiss under D.C.’s anti-SLAPP Act. Defendants appealed, and the case is now pending before the United States Court of Appeals for the District of Columbia Circuit

The district court cited three reasons for its dismissal. First, it found that entertaining defendants’ motion would require retroactive application of the anti-SLAPP statute as Sherrod filed her complaint on February 11, 2011 and the D.C. anti-SLAPP Act did not become effective until March 31, 2011. Typically, only statutes that are purely procedural in nature can be applied retroactively, and the court held that the Act is substantive (or has substantive consequences). Defendants argue that whether the statute only applies to actions filed after its effective date is an issue of first impression, and summary disposition of a case of first impression involving a newly enacted statue that protects important First Amendment rights is not appropriate.

The district court found that even if the statute were purely procedural, the Erie doctrine, which requires federal courts sitting in diversity to apply state substantive law and federal procedural law, bars its application in federal court. Finally, the district court held that even if defendants could show that the statute is both retroactive and applicable in federal court, the plain language of the statute bars the motion to dismiss–the statute provides that a party may file a special motion to dismiss within 45 days after service of the claim, and here, the motion was filed more than two weeks after the 45 days had passed.

May 17, 2012

Defamation Claims Asserted by Church Against Former Members

by Lee E. Berlik

Julie Anne Smith and her family attended Beaverton Grace Bible Church for over two years. When the church dismissed one of its employees for “subversive conduct,” the Smith family sought meetings with the Pastor and Elders to discuss the situation because they felt the termination was handled poorly. During the meetings, the Smiths and church officials discussed church policies and governance. Later, an elder informed Mrs. Smith that she must “recant” or her entire family would no longer be welcome at the church. The Smiths stopped attending the church.

Mrs. Smith later learned that Oregon authorities were investigating allegations of child molestation by a teenage member of the church whom she had seen in the child care area. The Pastor and Elders came unannounced to the Smith home demanding to know whether the Smiths knew who had reported the abuse. The Pastor informed the Smiths that they were “excommunicated.”

Mrs. Smith began posting comments about the church under Google’s “reviews” of the church. Congregants, former congregants, and the Pastor also posted comments, and the dialogue about church governance and doctrine continued. The Pastor removed many postings, so Mrs. Smith began her own blog, Beaverton Grace Bible Church Survivors, where she continued making and encouraging comments.

May 12, 2012

D.C.’s Anti-SLAPP Act to Be Tested in Maddow Defamation Case

by Lee E. Berlik

Christian minister and hard-rocker Bradlee Dean and his non-profit foundation, You Can Run But You Cannot Hide International (YCR), brought a defamation suit against liberal talk show host and commentator Rachel Maddow for comments Maddow made on The Rachel Maddow Show. Maddow is hitting back hard, filing a motion to dismiss under the District of Columbia’s relatively new anti-SLAPP Act. If Maddow’s motion is successful, Dean’s defamation case will not only be dismissed with prejudice, but Maddow will be entitled to recovery of her attorneys’ fees.

The complaint alleges that Maddow disparaged Dean’s physical appearance, first name, profession, and standing in the community and represented that he and YCR advocate the execution of homosexuals. In her commentary (excerpted below), Maddow mentioned that Dean denied having called for the execution of homosexuals, but Dean and YCR contend that Maddow did so begrudgingly and in a way that suggested their denial was disingenuous.

Dean charges Maddow with referring to him as a “bloodthirsty” individual calling for the “upping of the bloodshed in America’s culture wars,” and accusing him of advocating the use of foreign enemies against America because Christians “aren’t doing the job by killing gays and lesbians.” According to the plaintiffs, Maddow’s comments proliferated in the media and led to Dean receiving Internet death threats from gay activists. The plaintiffs contend that Maddow made these comments as a liberal member of the media and lesbian activist in order to harm the presidential campaign of Congresswoman Michelle Bachman to whom Maddow linked Mr. Dean and YCR on several occasions.