Devin Nunes Libel Tourism Continues To Highlight The Problems Of Virginia's Weak Anti-SLAPP Laws

from the something-good-can-come-of-this dept

We've talked a bunch about how Rep. Devin Nunes' ongoing series of SLAPP lawsuits, nearly all of which are in Virginia, have really served to highlight the nature of libel tourism in the US today, and in particular how plaintiffs and lawyers go hunting for jurisdictions with weak or non-existent anti-SLAPP laws. We already mentioned that Nunes's series of lawsuits has convinced at least some Virginia legislators that it's time to beef up Virginia's anti-SLAPP law, but as the Washington Post recently noted, it's also driving home how the rich and powerful engage in libel tourism by picking venues like Virginia to cause more trouble for those they sue.

Rep. Devin Nunes of California was angered by a story in his hometown newspaper detailing a claim that investors in a winery he partly owns partied with cocaine and prostitutes. So the Republican decided to sue — in rural Virginia.

Nunes bypassed the courthouse less than two miles from one of his offices and 10 blocks from the Fresno Bee to file the $150 million defamation claim against its owner 2,600 miles away. He also chose the Old Dominion to file two other recent defamation suits, one naming San Francisco-based Twitter and an anonymous user who has mocked him in the voice of an imaginary cow.

Why didn't he sue in California (where he's from and where the defendant newspaper was from)? Because, duh:

California’s anti-SLAPP law allows defendants to file a special motion at the outset of litigation if they feel the lawsuit is without merit and aimed at chilling First Amendment rights on a topic of public interest. If a judge sides with the defendant, the plaintiff is required to pay the defendant’s legal fees.

Virginia has an anti-SLAPP law, but there is no special motion provision and defendants are not guaranteed legal fees if a case is dismissed. The practical effect, experts say, is that cases can drag on until the sides begin to exchange evidence and a case goes to trial. That can mean months — or even years — of legal wrangling and hefty legal bills.

Indeed, the article notes that Virginia's anti-SLAPP law is effectively a dead letter:

“I really have not seen the anti-SLAPP in Virginia successfully applied,” said Jennifer Nelson, co-director of the University of Virginia School of Law’s First Amendment Clinic. “It does not seem to be working the way it was intended to.”

The article also notes that Johnny Depp filed a defamation lawsuit in Virginia as well, and questions why he chose that jurisdiction.

Likewise, actor Johnny Depp sued his ex-wife Amber Heard for $50 million in a Northern Virginia courthouse, claiming he was defamed in an op-ed in The Washington Post in which she called for support for domestic violence victims like herself. Both Depp and Heard live in Hollywood. Heard, who came to at least one hearing in the case, said in court filings that she had never previously set foot in the state.

But, it does appear that Virginia's reputation as a place for filing bogus SLAPP suits is getting more and more attention among lawmakers there:

The lawsuits have caught the attention of Virginia legislators. Del. Schuyler T. Van Valkenburg (D-Henrico) is preparing a bill for the state’s next legislative session in January that would seek to put its anti-SLAPP law on par with California’s. Defendants would have the opportunity to file a motion to dismiss a case early in litigation if they feel it is frivolous and, if successful, could recover fees from the plaintiff.

“If you have a democracy that works for people, the main thing we can do is make sure everyone has the ability to participate on an equal footing,” VanValkenburg said.

If so, that would be the one good thing coming from these Nunes lawsuits.

Filed Under: anti-slapp, devin nunes, johnny depp, libel tourism, slapp, virginia


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  • identicon
    Qwertygiy, 6 Jan 2020 @ 6:39am

    He should have known that this is what happens to the boy who cries cow. Eventually he gets his bugle taken away so everyone can stop wasting time chasing after a cow that doesn't exist.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2020 @ 7:27am

    Stupid question

    Can the defendant counter sue in CA and have the whole thing fall under the better anti-slap protection?

    reply to this | link to this | view in chronology ]

    • identicon
      Qwertygiy, 6 Jan 2020 @ 7:57am

      Re: Stupid question

      Not exactly, but they can submit a motion suggesting that it be remanded to California courts, or dismissed and forced to refile in California, since Virginia is not the proper jurisdiction.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2020 @ 9:43am

      Re: Stupid question

      No, how would that even work? If you counter-sue, you are the plaintiff in that suit, so they'd have no grounds to even file an anti-slapp claim. That's even ignoring that California courts have no legal power over suits filed in Virginia.

      reply to this | link to this | view in chronology ]

  • icon
    lucidrenegade (profile), 6 Jan 2020 @ 7:35am

    I don't understand how these lawsuits don't get thrown out as neither party resides in VA.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2020 @ 8:09am

    Forum Shopping ought to be illegal.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2020 @ 9:43am

      Re: forum shopping

      Forum shopping is illegal if it's used to send the case to a foreign country. The SPEECH Act was created for this very purpose, as flawed English libel laws were being used to silence American publishers by suing them in the Undead Kingdom.

      Unfortunately, no comparable protection exists for using another US state as a flag of convenience.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Jan 2020 @ 9:53am

        Re: Re: forum shopping

        It's not illegal to file suit in a foreign country. There is no law that forbids forum shopping. The SPEECH act just makes foreign libel judgements unenforceable in the United States if the forum used doesn't offer at least the same free speech rights, and if the defendant wouldn't have been found liable under US libel law. There's nothing in there at all about the legality of forum shopping.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 6 Jan 2020 @ 8:35am

    'Because... who wouldn't want to come to virginia?'

    It'll be interesting to see what excuses get trotted out to try to prevent virginia's anti-SLAPP law from being updated so it's actually useful, given the only reason I can think of off-hand to oppose that is because people like abusing the court system in order to punish people for saying 'mean' but not illegal things.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2020 @ 9:46am

      Re: 'Because... who wouldn't want to come to virginia?'

      Unfortunately, PBS is also headquartered in VA... and it needs to be able to speak freely as it's likely the only source of broadcast television documentaries not to be beholden 100% to paid corporate advertisers. And yes, its position is tenuous enough already.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Jan 2020 @ 10:04am

        Re: Re: 'Because... who wouldn't want to come to virginia?'

        How would stronger anti-SLAPP laws harm PBS?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 6 Jan 2020 @ 10:49am

          Re: Re: Re: 'Because... who wouldn't want to come to virginia?'

          It wouldn’t. He’s just dressed up a pile of mouldy hay with a top hat and suspenders for some reason.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2020 @ 8:51am

    Home to the CIA, who wouldn't want to file here

    They need to do some serious publicity, aren't 2 of the main TLA's based on Virginia (CIA & FBI).

    now why would they want to route 'sensitive' cases through such a state? I'm sure it has nothing to do with government collaboration...

    /s

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2020 @ 10:16am

      Re: Home to the CIA, who wouldn't want to file here

      You think the CIA is filing cases at the county courthouse? Are you trying to get mocked by internet-based livestock?

      reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 6 Jan 2020 @ 9:15am

    Having a lawsuit filed in Virginia based upon a California paper's report into his family farm moving to Iowa is a great way for him to ensure the entire country sees how badly an internet cow whoops his butt.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 6 Jan 2020 @ 10:32am

      Re:

      This isn't a Streisand Effect thing, though. This isn't "Nunes didn't want people to find out about this, and so he tried to suppress it, with the result that a lot more people found out about it."

      Nunes is a buffoon, but in this case, he knows what he's doing. He's intimidating his critics, while feeding a victim narrative he can pitch to his supporters as he seeks donations in an election year.

      It may look like the Streisand Effect, but it's not. He wants people to know about this, his critics and his supporters alike; he wants his critics to be afraid to speak out, and he wants his supporters to sympathize with him as an innocent victim of a left-wing smear campaign.

      reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 7 Jan 2020 @ 12:36pm

    The lawsuits have caught the attention of Virginia legislators. Del. Schuyler T. Van Valkenburg (D-Henrico) is preparing a bill for the state’s next legislative session in January that would seek to put its anti-SLAPP law on par with California’s.

    So, which is the state with the next worst anti-SLAPP law?
    Venue shopping is going to continue until there is a proper federal anti-SLAPP law and also a solid rule to escalate a trial to federal level.

    reply to this | link to this | view in chronology ]


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