Update March 31: Earlier this month, the Virginia Legislature closed down without passing any version of an anti-SLAPP bill. We hope Virginia lawmakers will protect free speech in their state by passing such a bill in the next legislative session.

The Virginia legislature is on the verge of a big step forward for free expression. In the coming days, legislators will have the opportunity to pass a bill that would push back against harassing lawsuits called SLAPPs, or Strategic Lawsuits Against Public Participation.

SLAPPs are lawsuits that are filed to bully or bankrupt activists, protesters, journalists, bloggers, or even online reviewers. The point of a SLAPP isn’t to resolve a legitimate legal dispute—instead, it seeks to leverage the financial and psychological pain of litigation against someone who has spoken out, and silence or diminish that person’s speech. Unfortunately, SLAPPs have been on the rise. And states without strong anti-SLAPP laws—like Virginia—are becoming a magnet for these types of lawsuits.

The highest-profile examples of Virginia courts being abused are from this past year. Devin Nunes, a member of Congress from California, has filed several lawsuits in Virginia—against anonymous Twitter critics, CNN, and his hometown newspaper. Nunes is trying to use Virginia courts to avoid California’s strong anti-SLAPP law.

Protections for SLAPP Victims

Last month, we explained our support for Virginia’s H.B. 759. Earlier this week, the Virginia House of Delegates passed an amended version of this bill. And, the Virginia Senate passed its own anti-SLAPP bill.

Virginia legislators will now come together in a conference committee to iron out the differences between the bills. Several other states have anti-SLAPP bills in various stages of consideration, including Kentucky, Massachusetts, Ohio, and New York, so it’s a good time to consider the elements that make up a good anti-SLAPP law.

A good anti-SLAPP law puts the brakes on harassing or censorious litigation, and creates incentives that make it easier for a SLAPP victim to get legal help. The House of Delegates bill, H.B. 759, succeeds on both counts, and we hope Virginia lawmakers see fit to pass it. There are also a few areas in which the bill could be stronger—and one significant loophole, which we’ll get to below.

H.B. 759 will make it easier for SLAPP defendants to get legal counsel. That’s because if a judge deems a case a SLAPP, the plaintiff will be required to pay the defendant’s attorney fees. Ideally, that results in defense lawyers who will represent SLAPP defendants on contingency even in situations where the person sued doesn’t have a lot of money to pay up front.

The bill also protects a wider range of speakers to defend themselves in court. H.B. 759 allows anyone speaking about a “matter of public concern” to use the anti-SLAPP law to defend themselves, and it has a fairly broad definition of public concern.

If the case is found to be a SLAPP, H.B. 759 would also stay the discovery process. That will make it harder to use litigation just to harass or punish people for speaking out.

What Stops a SLAPP

All of this makes the bill a big improvement from the current state of Virginia law. But it isn’t perfect. Three missing elements in particular could have made the bill stronger.

First, H.B. 759 doesn’t properly protect free speech about businesses. The anti-SLAPP law can’t be activated against “any claim that arises out of the sale or lease of goods or services,” which excludes people who leave, for example, critical online reviews.

Unfortunately, this isn’t just a theoretical problem. It’s happened in Virginia—repeatedly. In 2012, a Washington D.C. contractor sued a Fairfax, Virginia, homeowner, Jane Perez, over a negative Yelp review. Years before that, a San Francisco doctor sued her former customers, who complained about her shoddy work in online forums, again, in Virginia.

Virginians are on the verge of getting protections that will allow them to speak more freely about political life, without facing spurious lawsuits. It’s time for lawmakers to recognize that consumer opinions about businesses are also constitutionally protected speech, and deserve similarly strong protections.

Second, H.B. 759 ties its anti-SLAPP motion to Virginia’s limited “demurrer” or regular motion to dismiss process. The main problem with this procedural mechanism is that it doesn’t allow for a SLAPP defendant to attach affidavits, or show new evidence. A defendant simply has to ask the judge overseeing the case to call a SLAPP a SLAPP without having the opportunity to tell their story. That’s a significant oversight, because it isn’t always obvious at first glance what makes a lawsuit a SLAPP. Judges need to be able to make an informed call about it, after hearing from both sides. The bill as written doesn’t give a SLAPP defendant enough leeway to tell their story.

Finally, the bill doesn’t allow for immediate appeals. The best anti-SLAPP laws, like those in Texas and California, allow a losing SLAPP defendant to elevate their case to an appeals court for a second look if they lose. That process happens before they go through discovery and trial in a lower court. That’s an important tool because, as we noted above, the whole point of a SLAPP is to harass and wear down defendants with unwarranted litigation costs.

The good news is that the legislature could still fix some, or all, of these problems. The bill is headed to a conference committee. The anti-SLAPP bill passed by the Virginia Senate, for instance, references a “special plea,” which could be made to be more robust than the state’s limited demurrer process.

The increase in SLAPP lawsuits is one of the reasons why, in 2018, EFF joined the Protect the Protest coalition. EFF has also long-supported the Public Participation Project’s work to pass a federal anti-SLAPP bill. In the absence of a strong federal bill, we expect states will continue to move forward with their own bills, which protect their citizens’ free speech rights.