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CASEY: Efforts to strengthen Virginia's anti-SLAPP laws failed in General Assembly

CASEY: Efforts to strengthen Virginia's anti-SLAPP laws failed in General Assembly

Because of comparatively lax laws in Virginia, a California congressman is suing his hometown paper in Albemarle County, and a Hollywood actor his suing his ex-wife in Fairfax. Efforts to stem actions like those failed in the Virginia legislature this year, but it sounds like they'll be back in 2021.

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Remember the quaint days before the deadly pandemic that crashed our economy? The supermarkets were stocked with toilet paper, 30 million more Americans were employed, and some less-urgent issues occupied our attention.

One concerned a California congressman who’s suing the owner of his hometown newspaper, the Fresno Bee — but in Virginia.

Rep. Devin Nunes, a Republican who represents the Fresno, California, region, is also suing Twitter, CNN, the Washington Post, a Republican political strategist and some others.

Legal analysts have theorized Nunes filed those lawsuits in Virginia because his home state has strong safeguards to deter Strategic Lawsuits Against Public Participation, or SLAPPs. California’s anti-SLAPP law allows defendants to seek early dismissal of frivolous lawsuits and collect attorney fees and court costs from plaintiffs.

Virginia’s anti-SLAPP law does neither. Some Democrats in the General Assembly tried to change that in the 2020 legislative session. They got close, but get no cigar. Separate measures — one in the House of Delegates and the other in the state Senate, failed to win passage on the legislative session’s final day.

The chief patrons of those bills were State Sen. John Edwards, D-Roanoke, and Del. Schuyler VanValkenburg, D-Henrico. Both told me they expected to be back with anti-SLAPP legislation in the 2021 legislative session.

“I think it’s an urgent problem,” said VanValkenburg, who works as a civics teacher. “We’re seeing Virginia being used as a place to suppress speech.”

“We’ll bring it back next year,” Edwards said. “I think we need to do something.”

Nunes, the ranking member on the House Intelligence Committee, has filed lawsuits in Albemarle Circuit Court, Henrico Circuit Court and in U.S. District Court for the Eastern District of Virginia. Collectively, those legal actions seek more than $1 billion in damages.

Via voicemail and social mediasite LinkedIn, I reached out Friday to Nunes’ lawyer, Steven Biss of Charlottesville. I wanted to ask him whether his client had filed the lawsuits in Virginia because of its comparatively weak anti-SLAPP law. Biss responded with a LinkedIn message Saturday, but didn’t answer that question. However, he said he wasn’t surprised the legislation failed.

Separately, actor Johnny Depp has sued his ex-wife, actor Amber Heard, in Fairfax County Circuit Court for $50 million. Depp alleges she defamed him in an op-ed published in the Washington Post. Neither Depp nor Heard reside in Virginia, although the newspaper has a printing plant in Fairfax.

Nunes’ lawsuits have gotten more attention for a variety of reasons. First, he’s one of President Donald Trump’s staunchest defenders in Congress, and there’s been no shortage of criticism directed at him and by him in Washington, D.C.’s, highly charged political atmosphere.

Second, Nunes is going after high-profile media and technology targets for huge sums. Finally, two of his targets are satirical Twitter accounts — “Devin Nunes’ cow” and “Devin Nunes’ Mom.” Each has poked fun at the congressman in tweets.

For example, the Devin Nunes’ cow account once tweeted “Devin’s boots are full of manure. He’s udder-ly worthless and its pasture time to move him to prison,” according to one Nunes lawsuit.

Liz Mair, the Republican political strategist and Nunes defendant, told me she’s being sued for a total of $400 million in two of Nunes’ lawsuits for tweets she sent about him.

“I think I’m a fairly successful businesswoman, but short of winning both the Powerball and MegaMillions lotteries, and then investing those prizes well, it’s safe to say I’ll be dead long before I could pay [$400 million],” Mair told me.

She also said she found it “ironic” that these lawsuits are occurring in the home state of James Madison, lead author of the free speech and press clauses in the First Amendment.

The bills by Edwards and VanValkenburg took different approaches to solving the same problem. Each sought to allow defendants who were being sued for exercising their First Amendment rights to seek early dismissals of the lawsuits.

If they won those motions, it would avoid legal wrangling and court proceedings that could last for months or years, while defendants were forced to pay attorneys fees in the hundreds of dollars per hour.

Edwards’ bill sailed through the Senate Judiciary Committee and the Senate without a dissenting vote. VanValkenburg’s measure had a bipartisan majority when it passed the House, 64-34.

But the hang-ups arose when each chamber took up the other’s version. The House rewrote the Senate bill to make it identical to the House version and the Senate did the same with the House’s version when it got to the Senate.

Ultimately, a conference committee of lawmakers from both chambers couldn’t resolve all the differences by the time the General Assembly adjourned.

One part they managed to work out was whether judges would have the option of awarding attorneys fees and court costs to defendants who won motions for early dismissals in a SLAPP suit. The way both measures ended up, judges would be required to award those fees and costs.

That may be significant, Edwards noted, if the legislature passes a similar bill next year and Nunes’ lawsuits remain ongoing come July 1, 2021, the date the law would take effect.

Because the change in law would be procedural rather than substantive, Nunes’ defendants may be able to seek early dismissals and attorneys fees even though his lawsuits were filed before the law was enacted, Edwards said. Those fees could be substantial.

“The successful part of this [session] is that we did educate both houses [of the General Assembly] on this issue,” VanValkenburg said.

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Dan Casey knows a little bit about a lot of things but not a heck of a lot about most things. That doesn't keep him from writing about them, however. So keep him honest!

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