Virginians Need to Stop Getting SLAPPed Around ...

The Virginia General Assembly has two anti-SLAPP (Strategic Lawsuit Against Public Participation) bills before it this session that provide an opportunity for the oldest, continuous lawmaking body in the new world to do the founders of this nation proud by preserving and safeguarding the bedrock right of citizens to petition the government "for a redress of grievances," a right guaranteed by both The Bill of Rights and The Virginia Constitution, with legal roots stretching back to The Magna Carta.

The two bills -- HB1117 and SB577 -- arise from a legal nightmare that confronted four parents of Richmond Public School (RPS) students who were hit with a $3.5 million defamation lawsuit after they (and 50-plus other parents) collectively wrote and signed a letter that they sent to the Superintendent of RPS and to the members of the School Board. The letter detailed their concerns about the administrative actions of the principal at their children's middle school.

The $3.5 million defamation lawsuit is an example of a SLAPP lawsuit.  The principal filed suit against the parents without the knowledge of either the Superintendent or School Board members, but only named four of the 50-plus parents who signed the letter -- Wendy and Todd Martin, Anthony and Yvette Conte. Wendy Martin testified before the Courts and Justice subcommittee this past Monday:

This legislation is personal to me. In the summer of July 2013, my husband and I were among a group of 50 parents who wrote a letter to the Richmond Public Schools acting superintendent, outlining safety and educational problems at our daughter’s public middle school. RPS School Board member Kim Gray later referred to this letter as being “full of verifiable facts.” The school principal, in my opinion, was seeking revenge for our criticisms and an insurance payout among other things, sued us for defamation/malice AND $3.5 million dollars. A circuit court judge shut this lawsuit down. Yet the principal appealed it to the Virginia Supreme Court. They shut it down. So she filed a petition for rehearing. The Virginia Supreme Court denied that. What were the costs to my husband and me? 455 days of feeling like we had a gun to our heads, lots of sleepless nights, I gained 20 pounds from stress and we had legal fees that approached $40,000. All for exercising our First Amendment rights and advocating for better schools. I hope you agree that this is an outrage.

Martin was eloquent and prepared. She brought books to share with the legislators. She even quoted the public comments made by the late Dr. Bill Bosher, Distinguished Professor of Public Policy and Education at Virginia Commonwealth University about the lawsuit:

“The truth is we [public school educators] are public servants. Therefore, the public has the opportunity to critique when we're doing well and when they think we're not… The thing that most influences student achievement is parents being involved with their young people and when you want that to happen this [lawsuit] certainly could mute the enthusiasm."

I testified as a former member of the City of Richmond School Board [2002-2008] and as a print journalist who now blogs and freelances commentary pieces about education. I told the subcommittee about the importance of parental involvement in our public schools and how the SLAPP suit brought against the Martins and Contes has had a definite chilling effect on Richmond parents.

I shared that many parents have told me that as much as they wish to be a part of improving the quality of our schools for ALL children, that they absolutely refuse to risk of being sued for speaking on the record about their concerns for their child's education. Questions about whether they would write a letter to any school official about their concerns for their child's education are met with nervous laughter, rolled eyes and "are you crazy?!" looks.

Suffice to say, the subcommittee members seemed moved by our collective testimony. They added language that said that should a SLAPP lawsuit be filed and ultimately dismissed, that the court "may" award reasonable attorney fees to the defendants.

While I appreciate that we live in a litigious nation in which it seems anybody can sue anybody if they believe they have been injured, there is something especially galling about a lawsuit brought by a government official against citizens who dared to ask that official -- or agents of that official -- for "redress of grievances."

The right to petition, whether one stands before a public body or writes a letter concerning a public matter, allows citizens to focus government attention on unresolved ills; provide information to elected leaders about unpopular policies; expose misconduct, waste, corruption, and incompetence and to vent popular frustrations without endangering the public order.

And yet, what made it out of the House Courts and Justice Committee Wednesday essentially gutted HB1117. The only communication currently protected by this bill are statements made before a "public hearing."

How is limiting the immunity of an ordinary citizen to "petition" their government or school officials simply to utterances made in a public hearing not unconstitutional? 

Why is writing a letter and submitting a petition about an issue of public concern not protected communication?

Burton Jay Rubin, a Virginia lawyer who has written extensively about SLAPP suits, contends that any law that limits the ways that a citizen can petition the government is potentially unconstitutional.

For this reason, the activities of petitioning — writing letters, gathering signatures, circulating fliers, rallying public support — are precisely what the Founding Fathers envisioned when they wrote The Bill of Rights and ought to be protected activities. 

Like Rubin, the Founding Fathers and countless other Virginians, I believe “there ought to be a law,” that will specifically prevent public officials from intimidating the very citizens and taxpayers they are supposed to serve by filing abusive lawsuits against them.  

It is difficult to imagine anything that strikes more directly at the heart of our form of government than a civil suit brought against a citizen by a public official seeking to suppress or deflect that citizen’s request that the official take some form of governmental action. 

And while common sense and Virginia common law already condemn such actions, that has proven not to be enough. Virginians have been getting slapped around long enough. The Virginia General Assembly needs to act.  Click here and here to read Rubin's legal analysis that cites extensive Virginia case law as a foundation for including not just words spoken at a public hearing, but written statements as well. 

Click here for a list of the members of the Virginia House of Delegates and contact information and here for a list of Virginia State Senators and their contact information. 

Anti-SLAPP legislation isn’t a Red State or Blue State thing. Twenty-eight states across the nation – as diverse as California and Texas – already have Anti-SLAPP legislation. Virginia’s existing law is so weak, the Commonwealth doesn’t even make the Public Participation Project’s list of states with Anti-SLAPP legislation.

Relevant links:

Del. Manoli Loupassi’s (R) bill:

http://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+HB1117

PDF: http://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+HB1117+pdf

Co-patroned by Delegates Chris Peace (R) and Jennifer McClellan (D).

Sen. Glen Sturtevant’s (R) bill:

http://lis.virginia.gov/cgi-bin/legp604.exe?161+sum+SB577

PDF: http://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+SB577+pdf
Co-patroned by Senator Roslyn Dance (D) and Jennifer McClellan (D).