eNotes: Liability – September 2024 – Virginia

SIGNIFICANT CASE SUMMARIES

Virginia Case Summary

Rolofson v. Fraser
Virginia Court of Appeals
No. 0828-23-4

Decided: July 30, 2024

Statements made concerning personal grievances are not immune from civil liability under Virginia’s Anti-SLAPP legislation.

Background

Rolofson and Fraser are Army officers who dated briefly in 2017 while stationed together. Following their relationship, Fraser made allegations about Rolfson’s behavior to the military chain of command. A military hearing was held in 2020 where Fraser reiterated her allegations of harassment, and in 2021 Fraser allegedly told Rolofson’s superiors that “she was in fear of her life because [Rolofson] knew her address and had sued her.” In September of 2021, Rolofson filed a Complaint for defamation. Fraser filed a demurrer, arguing that her statements were privileged, her statements were matters of opinion, and her statements were protected under Virginia’s anti-SLAPP statute, as the statements were a matter of public concern. The Circuit Court sustained the demurrer, but expressly rejected Fraser’s argument that the statements were protected by the Virginia anti-SLAPP statute. Fraser sought reconsideration.

Anti-SLAPP statutes aim to deter lawsuits brought for purposes of harassing individuals exercising free speech. Virginia’s anti-SLAPP statute states that a person is immune from civil liability for a claim of defamation based on statements “regarding matters of public concern that would be protected under the First Amendment.” Here, Fraser argued that her statements were a matter of public concern because the Army’s enforcement of officer conduct is a matter of public interest.

Holding

Previously, courts held that speech addressed a matter of public concern when it was (1) designed to reach as broad of a public audience as possible; (2) directed at the public; and (3) a group complaint. Further, invoking an internal grievance procedure is not usually intended to communicate a matter to the public outside of an employment context. Here, the statements were made within the context of an internal grievance procedure – a hearing. Additionally, while the Army’s enforcement of officer conduct may be a matter of public interest, Fraser’s statements concerned her personal allegations against Rolofson and Rolofson’s personal conduct. Finally, the Court found that the intent of the statute was to discourage frivolous lawsuits, and Rolofson’s complaint was not frivolous. Ultimately, the Court of Appeals held that Fraser’s statements were not protected by Virginia’s Anti-SLAPP law.

Questions about this case can be directed to Nicolette DeFrank at (571) 470-0395 or ndefrank@tthlaw.com.