Anti-SLAPP Laws in Virginia

At a glance

Requirements one by one

Governing law

Virginia's anti-SLAPP statute is Va. Code § 8.01-223.2, titled Immunity of persons for statements made at public hearing or communicated to third party, first enacted in 2007 (c.798) and amended five separate times since, most recently in 2025 (c.641), which added the Title IX-hearing and employee-retaliation categories described below. The Virginia Supreme Court has described § 8.01-223.2 as Virginia's anti-SLAPP statute. Unlike California's or the newer UPEPA states' laws, it creates a substantive immunity defense rather than a special procedural motion.

What speech or conduct is protected

Immunity covers four categories: (i) statements on a matter of public concern that would be protected under the First Amendment, made to a third party; (ii) statements made at, or otherwise communicated to, a local governmental body's public hearing concerning a matter properly before it; (iii) statements made at a Title IX hearing before a college or university tribunal; and (iv) an employee's statements against an employer where retaliation for making them is barred by § 40.1-27.3. That is a narrower, more itemized list than the broad "any matter of public concern" catch-alls used by California, Texas, or the UPEPA states.

How the immunity is raised

The statute creates no special motion and sets no filing deadline. In practice, defendants raise the § 8.01-223.2 immunity through a plea in bar, Virginia's vehicle for an affirmative defense that can be resolved on the pleadings alone, though defendants sometimes raise it (improperly, per the Supreme Court of Virginia) in a demurrer instead, since a demurrer "tests only the facial validity of the allegations in a complaint rather than the validity of affirmative defenses." Nothing in the statute stays discovery while the plea is pending.

Burden of proof

There is no "probability of prevailing" evidentiary test. The immunity attaches to the listed categories unless the plaintiff shows the declarant knew or should have known the statement was false, or made it with reckless disregard for its truth. Because the immunity is typically decided on a plea in bar or demurrer, a court accepts the complaint's well-pleaded factual allegations as true and asks whether they are enough to show the statement was knowingly or recklessly false, not whether the plaintiff has actually proved falsity yet.

Attorney's fees

Fees are discretionary, not mandatory. A person whose suit is dismissed, whose subpoena or subpoena duces tecum is quashed, or who "otherwise prevails" based on the immunity "may be awarded" reasonable attorney fees and costs. There is no reciprocal fee-shifting provision against a defendant who raises the immunity and loses.

Right to appeal

Section 8.01-223.2 itself says nothing about appeals. Separately, since a 2023 recodification, a circuit court order granting or denying a plea of "sovereign, absolute, or qualified immunity" that would immunize the movant from having to participate in the case is immediately appealable to the Supreme Court of Virginia by petition within 15 days. The Supreme Court has exercised that jurisdiction over an order that denied, among other defenses, statutory immunity under § 8.01-223.2, in Brooks-Buck v. Wahlstrom (decided October 16, 2025).

Exemptions

The statute has no separate exemptions section naming carve-outs the way UPEPA states do for commercial speech or government-enforcement suits. The only built-in limit on the immunity is subsection B's exception for statements the declarant knew or should have known were false, or made with reckless disregard for the truth.

What trips people up

There is no special motion to file, and no automatic stay. Someone expecting a California- or UPEPA-style procedure, file a special motion within 60 days, get an automatic discovery freeze, will find nothing like that here. The immunity is an affirmative defense raised through ordinary Virginia civil procedure, most properly a plea in bar, and discovery proceeds unless a court separately orders otherwise.

A demurrer isn't technically the right vehicle, but it gets used anyway. The Supreme Court of Virginia has repeatedly noted that an affirmative defense like § 8.01-223.2 immunity belongs in a plea in bar, not a demurrer, because a demurrer tests only whether the complaint states a claim, not whether a defense defeats it. Courts have still reached the merits when the demurrer and plea in bar rely on the same undisputed facts, but a defendant who wants a clean procedural posture should use a plea in bar.

The four protected categories are specific, an internal grievance or employment dispute doesn't automatically qualify. In Rolofson v. Fraser, 81 Va. App. 508 (2024), the Court of Appeals held that personal accusations made in an internal military process were not speech on a matter of public concern and that the Army board was not the governing body of a Virginia locality or political subdivision.

Common questions

Do I need to file a special motion within a set number of days? No. Virginia's statute sets no filing deadline and creates no separate motion; you raise the immunity as an affirmative defense, typically in a plea in bar, on whatever schedule your case's procedural posture allows.

Does filing an immunity defense stop discovery? Not automatically. Nothing in § 8.01-223.2 stays the case, and a party has to separately persuade the court that a stay is warranted.

If I win, am I guaranteed to get my attorney's fees back? No. The statute says a prevailing party "may be awarded" fees and costs, it's discretionary, not automatic, even when the immunity fully defeats the claim.

Statutes and sources

• Va. Code § 8.01-223.2 — "A. A person shall be immune from tort liability if the tort claim is based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the Constitution of the United States made by that person that are communicated to a third party, (ii) made at a public hearing before, or otherwise communicated to, the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body, (iii) made at a Title IX hearing before the applicable tribunal of an institution of higher education, or (iv) made by an employee against an employer where retaliatory action arising from such statements is prohibited by § 40.1-27.3. B. The immunity provided by this section shall not apply to any statements that the declarant knew or should have known were false or were made with reckless disregard for whether they were false. C. Any person who has a suit against him dismissed or a witness subpoena or subpoena duces tecum quashed, or otherwise prevails in a legal action, pursuant to the immunity provided by this section may be awarded reasonable attorney fees and costs." Source: https://law.lis.virginia.gov/vacode/title8.01/chapter3/section8.01-223.2/ (accessed 2026-08-23).
• Va. Code § 8.01-670.2 — "A. When, prior to the commencement of trial, the circuit court has entered in any pending civil action an order granting or denying a plea of sovereign, absolute, or qualified immunity that, if granted, would immunize the movant from compulsory participation in the proceeding, the order is eligible for immediate appellate review. Any person aggrieved by such order may, within 15 days of the entry of such order, file a petition for review with the Supreme Court in accordance with the procedures set forth in § 8.01-626." Source: https://law.lis.virginia.gov/vacode/title8.01/chapter26/section8.01-670.2/ (accessed 2026-08-23).
• Brooks-Buck v. Wahlstrom, Record No. 250246 (Va. Oct. 16, 2025) — confirms that § 8.01-223.2 is treated as Virginia's anti-SLAPP statute, that the denial was reviewed under § 8.01-670.2, and that an affirmative defense ordinarily belongs in a plea in bar rather than a demurrer. Source: https://www.vacourts.gov/opinions/opnscvwp/1250246.pdf (accessed 2026-08-23).
• Rolofson v. Fraser, 81 Va. App. 508 (2024) — holds that the Army-board statements at issue did not concern a protected matter of public concern and that the Army was not a Virginia locality or political subdivision. Source: https://www.vacourts.gov/opinions/opncavwp/0828234.pdf (accessed 2026-08-23).