The Virginia Defamation Law Blog
Virginia’s anti-SLAPP statute offers immunity against tort claims based on statements “regarding matters of public concern.” We know generally that matters of public concern are those considered to be subjects of “legitimate news interest” such as those “relating to any matter of political, social, or other concern to the community.” (See City of San Diego, Cal. v. Roe, 543 U.S. 77, 83–84 (2004); Snyder v. Phelps, 562 U.S. 443 (2011)). The boundaries of what, exactly, constitutes “legitimate” public interest in a particular statement are not well defined, however, so I was pleased to see the Virginia Court of Appeals take up the matter and lay out some guidance in the recent case of Rolofson v. Fraser.
Samuel Rolofson and Brittany Fraser are Army officers who dated briefly in 2017 while stationed at Fort Bragg in North Carolina. After their relationship ended, Fraser complained to the military chain of command that Rolofson was harassing her with inappropriate text messages and that he had abused his authority by deleting from a security computer the name of another man he had accused Fraser of having an inappropriate relationship with. Rolofson’s chain of command conducted an investigation, held a hearing, and eventually issued a General Officer Memorandum of Reprimand, finding that Rolofson had “demonstrated a complete lack of judgment and responsibility” and “discredited” himself. He sued Fraser for defamation.
Fraser sought to dismiss the case at the outset, arguing (among other things) that her statements were regarding matters of public concern and were therefore protected by the anti-SLAPP statute. The statements at issue were a matter of public concern, she argued, because they related to Rolofson’s misconduct and fitness to serve as an active duty servicemember. Standards of conduct for the military services implicate the public welfare and should therefore be considered matters of public concern, she asserted. The circuit court did not 
agree with her on this point, and neither did the Court of Appeals.
Relying on a long list of federal cases, the court made the following distinctions between matters of public concern vs. matters of private concern, identifying common characteristics of each:
Matters of Public Concern
- Involves an issue of social, political, or other interest to a community
- Must involve at least some objective nexus to the public welfare beyond the simple fact that is subject happens to be a public employee
- Designed to reach as broad a public audience as possible
- Directed to the public
- Often in the form of a group complaint
- Often in a public forum
Examples:
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- Discriminatory institutional policies or practices
- Inability of an organization to carry out its vital public mission effectively
- Improper treatment of members of the public
- Discriminatory treatment of female officers
- School Board policies
Matters of Private Concern
- Implicates a purely personal topic or matter of personal interest
- Concerned with the self-interest of the speaker
- Often in a private setting
Examples:
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- Personal grievances
- Complaints about conditions of employment
- Internal employment grievance procedures
The inquiry is case- and fact-specific, the court noted, and the question is resolved by examining the content, form, and context of the speech. (See Cromer v. Brown, 88 F.3d 1315, 1325 (4th Cir. 1996)). Here, the court found that the anti-SLAPP statute did not apply because the statements allegedly made by Fraser about Rolofson did not address a matter of public concern. They were made through an internal grievance procedure and were clearly not intended to reach the general public. She was not expressing a political or social point of view but pursuing a personal complaint regarding how Rolofson’s alleged conduct affected her employment situation. These were private concerns to which the anti-SLAPP statute did not apply.