Virginia for whatever reason has not had a well developed appellate precedent on the contours of defamation whether it be libel or slander. Instead, lawyers in Virginia look to federal and the Supreme Court precedent to help guide defamation claims. Many states, including Virginia, have anti-slapp laws that are meant to prevent people from using courts and lawsuits to intimidate speakers from expressing themselves on matters that are protected by the First Amendment.

Obviously we all have freedom of speech in the country, but just as obvious you cannot defame a person. Virginia’s anti-slapp law is considered weak when compared to other states as it does not provide a mechanism to force a hearing to try and throw out a slapp lawsuit or stay discovery pending determination of whether the suit was in violation of the anti-SLAAP statute. Virginia’s statute does allow for recovery of attorney’s fees to a litigant who proves he or she is entitled to immunity under the statute.

The Fairfax Circuit Court appears to have ruled that Ms. Heard is allowed to raise the anti-slapp statute to the jury in the trial, and at the least argue that Ms. Heard is entitled to immunity for her statements. It is an obvious win for Ms. Heard, but still requires a jury to agree that she was not making a statement with reckless disregard for whether it was true or false. Mr. Depp’s lawyers will likely argue that Ms. Heard acted with malice (greater then recklessness), because they will argue that Mr. Depp did not abuse Ms. Heard and she intended to defame him in her public writings.

Demetry Pikrallidas & Ryan Probasco