Virginia is for lovers... and "libel tourism"

Ah, Virginia. The Bay state is known for more than just easy access to Washington, DC. They have some great beaches and other tourist destinations, along with generally pleasant weather in the winter. (At least compared to New York, anyway.) But vacations aren’t the only type of tourism bringing people to Virginia. As the Washington Post reports this week, it’s also a thriving hotspot for people who want to sue someone for libel. And the reason is that there are very few protections for the accused as compared to the rest of the country.

The WaPo report focuses on two high-profile sets of lawsuits. One is being brought by Hollywood personality Johnny Depp against his ex-wife for tens of millions of dollars. The others are from Congressman Devin Nunes (R-CA) against GOP strategist Liz Mair and the Twitter account of an imaginary cow. Those two add up to the hundreds of millions. After that, the report gets down to the reason why these cases are being heard in Virginia.

The plaintiffs argue their names have been smeared and the venues are appropriate, but several of the defendants — including Twitter and Heard — say the filing location is aimed at exploiting the state’s weak protections for defamation defendants. Legal experts say Virginia law allows those with deep pockets to bulldoze targets with frivolous, protracted and expensive litigation they couldn’t pursue in many other states.

The true goals of the suits, the defendants argue, are to stifle critics, blunt aggressive journalism and settle scores. Some deride the legal maneuvers as “libel tourism” and see a growing trend not just in Virginia but in other states that similarly lack safeguards. The suits have prompted Virginia lawmakers to look at changing the law.

Both Nunes and Depp live in California. So why are these lawsuits being heard in Virginia? It’s kind of tough to argue with the WaPo’s explanation here as the answer seems obvious. If the suits had been brought in the Golden State, they would have been subject to California’s strict anti-SLAPP law (Strategic Lawsuits Against Public Participation). Under that rule, when a libel case is begun, the accused has the right to claim (and demonstrate) that the suit is without merit and based on retribution or is only being used to stifle the speech of others. If a judge rules that this is the case, the suit can be tossed and the plaintiff is made to pay the legal fees of the accused.

Nothing like that exists in Virginia and courts there have traditionally allowed many of these crippling suits to move forward and even succeed. The targets of Devin Nunes are mired in extremely expensive legal proceedings that look to drag on well into the future. Even if they wind up prevailing, they may end up being bankrupted by the legal fees.

Liz Mair described the process. “He’s using litigation as a cudgel to try to stifle my and apparently quite a few other people’s free speech,” she said. “That is a right protected by the Constitution, which he has sworn an oath to support and defend.”

The imaginary cow was apparently unavailable for comment.

Looking at the details of the lawsuits against the Sacramento Bee, Mair and the satirical cow, it’s tough to see how anyone was libeling Nunes. And several legal analysts interviewed for this report seem to agree. It all stems from an article published in the Bee about a party held on a yacht that allegedly involved prostitutes and drugs. The yacht was the property of a winery where Nunes is a partial owner. Mair tweeted about the article, but none of the details reported by the paper appear to be in dispute. (Disclosure: I’ve been friends with Liz Mair for years, so take that into account as you will.)

The solution here seems to be strengthening the laws in Virginia so that plaintiffs will need to be sure of the solidity of their case before bringing it or face financial penalties of their own in return. Also, it wouldn’t hurt for some high-profile figures in both the private and public sectors to grow a bit thicker skin when it comes to social media stories.

In case you take a serious interest in this case and disagree with the claims Nunes is making, Mair has set up a legal defense fund you can read about here.

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