Virginia: Anti-SLAPP Laws

The short answer

Virginia has an anti-SLAPP statute, but it is a substantive tort-immunity
provision, not a UPEPA-style special-motion law. Va. Code § 8.01-223.2
immunizes a person from liability on a tort claim based solely on an
itemized list of statements: speech on a matter of public concern
communicated to a third party, statements to a local government body's
public hearing, statements at a college Title IX hearing, or an employee's
protected statements against an employer. There is no dedicated procedural
vehicle, filing deadline, or automatic discovery stay -- a defendant raises
the immunity through Virginia's ordinary civil procedure, typically a plea
in bar.

Requirements one by one

Governing law

Virginia's anti-SLAPP statute is Va. Code § 8.01-223.2, "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 confirmed that § 8.01-223.2 "has been referred to 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
(Va. Ct. App. 2024), a Virginia appellate court held that statements made
during an internal military hearing that was not public and not before a
governing body fell outside the statute's protection, even though the
underlying dispute touched on workplace conduct.

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 2026-07-05).
• 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 2026-07-05).
• Brooks-Buck v. Wahlstrom, Record No. 250246 (Va. Oct. 16, 2025) —
  "Code § 8.01-223.2 has been referred to as 'Virginia's anti-SLAPP
  (strategic lawsuit against public participation) statute.' ... The
  circuit court overruled the demurrers in part, concluding that the
  allegations of the amended complaint did not establish that Brooks-Buck
  and Riddick were immune from Wahlstrom's claims. Acting pursuant to Code
  § 8.01-670.2, Brooks-Buck and Riddick sought interlocutory review of the
  circuit court's decision. We granted their petition for review. ... We
  underscore that an affirmative defense should ordinarily be raised in a
  plea in bar rather than a demurrer." Source:
  https://www.vacourts.gov/opinions/opnscvwp/1250246.pdf (accessed
  2026-07-05).