Virginia Code § 8.01-223.2, informally known as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, provides immunity in tort for statements on matters of public concern (subject to certain exceptions not relevant here). I recently had an issue arise in a case that prompted the question of what “that would be protected under the First Amendment” really means in the context of how that phrase is used in the statute, which states in pertinent part as follows:
A person shall be immune from tort liability if the tort claim is based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the Constitution of the United States made by that person that are communicated to a third party….
In the course of litigating an anti-SLAPP statute issue recently, my opponent argued that the language, “that would be protected under the First Amendment,” means that the statement at issue must not be defamatory to begin with. In other words, because defamation is not “protected under the First Amendment,” they argued, the statute only provides immunity to statements that are “protected under the First Amendment”—i.e., statements that are not defamatory in any event.
This argument had me befuddled for at least two reasons. First, the most obvious point (to me at least), is that a statement that is not defamatory to begin with does not require any immunity. If a statement is not defamatory, it does not need the anti-SLAPP statute to protect it. This would seem to turn the purpose of the statute on its head. That could not possibly be the correct reading of this curious clause. And no court—in Virginia or elsewhere that I could find—had ever interpreted it in that way.
But what is the correct reading? Why did the General Assembly include this language?
I thought perhaps the phrase “that would be protected under the First Amendment” modified/applied to the phrase “regarding matters of public concern.” Put another way, it is acknowledging that speech on matters of public concern is protected under the First Amendment, and the statute could have been better-written beginning that phrase with “which would be protected…” instead of “that would be protected.” It made sense (and in fact was the only possible explanation), but I needed more.
My research took me back to the common law rule from which the anti-SLAPP statute likely sprang. Long before this law appeared on the books (in Virginia, codified in 2017), there was a common law rule (and affirmative defense), that speech on a matter of public concern is entitled to a higher level of protection (much like N.Y. Times v. Sullivan recognized that speech regarding a public figure is also entitled to greater protection). See Snyder v. Phelps, 562 U.S. 443, 452 (2011) (“[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”); Connick v. Myers, 461 U.S. 138, 145, (1983); see also Shenandoah Pub. House v. Gunter, 245 Va. 320, 324 (1993) (applying common law rule imposing actual malice standard to statements of public concern).
The anti-SLAPP statute must derive from this common law rule, and it must be that my original speculation was correct, that the phrase, “that would be protected under the First Amendment” refers to protection already afforded under the pre-existing common-law to speech on matters of public concern. Thus, this curious phrase likely is a descriptor that refers to the higher level of protection that is already afforded (and was afforded before the statute was promulgated) to statements on matters of public concern under that rule. The judge in my case, unfortunately, never reached the issue.
Perhaps I shall send a copy of this blog post to the General Assembly and suggest they change the “that” to a “which.” In other words: grammar matters.
By: Stacey Rose Harris, Contributor