Virginia's Not For Lovers: Why Virginia May See More Defamation Claims After Depp v. Heard

• Published date: 07 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Libel & Defamation
• Law Firm: Holland & Knight
• Author: Mr Brandon Elledge, Timothy Taylor, Christine N. Walz and Caitlin Eberhardt

Highlights

• In the wake of the recent defamation verdict in Depp v. Heard, Holland & Knight litigators share why more defamation cases may land in the Commonwealth of Virginia.
• This Holland & Knight alert takes a closer look at Virginia's weak anti-SLAPP law, its lengthy long-arm statute and its limited summary judgment practice.

In the wake of the recent six-week-long trial and defamation verdict in favor of Johnny Depp in Virginia's Fairfax County Circuit Court, many are asking what led to this outcome. Holland & Knight litigators share three factors that led to this result.

1. Virginia's Weak Anti-SLAPP Law

There has been widespread speculation that in Depp v. Heard, Johnny Depp's attorneys maneuvered his defamation case to Virginia state court in order to take advantage of Virginia's relatively weak anti-SLAPP legislation. But what exactly is an anti-SLAPP law, and how does Virginia's benefit defamation plaintiffs?

SLAPP stands for Strategic Lawsuit Against Public Participation. These are commonly understood to be meritless defamation and other tort claims filed to retaliate against and silence critics - usually consumers, activists or journalists - who speak out negatively against them. Oftentimes, the specter of protracted litigation and the associated exorbitant costs are enough to cow a party's critics into silence, even though the threatened suits lack merit. In order to combat SLAPPs' chilling effect on First Amendment rights, 32 states and the District of Columbia have passed anti-SLAPP legislation to discourage the filing of SLAPP suits.

Most states' anti-SLAPP laws provide defendants a way to seek a quick and inexpensive dismissal of a defamation case before discovery begins. For example, California (where Depp and his ex-wife Amber Heard reside and have more connections than Virginia) provides that SLAPP defendants may invoke anti-SLAPP immunity and file a motion to strike a complaint within 60 days of service. The case is then stayed until the judge decides whether the defendant is immune from suit under the state's anti-SLAPP law.

After some high-profile defamation suits were filed in Virginia, including Depp v. Heard and Nunes v. Twitter,¹ the Virginia General Assembly amended the Commonwealth's anti-SLAPP statute. The amendment grants immunity from defamation claims to persons who speak out on a matter of public concern to either a third party or governing body, so long as the statements are not made with knowledge or reckless disregard...