The following is taken from Judge Norman Moon's decision regarding our motion to dismiss in the Gilmore lawsuit. The decision was rendered yesterday and at this point I am not sure how I will proceed from here.
Defendants in this matter are as follows:
- Scott Creighton (“Creighton”)
- James Hoft (“Hoft”)
- Lee Stranahan (“Stranahan”)
- Lee Ann Fleissner, a.k.a.Lee Ann McAdoo (“McAdoo”)
- Alex Jones (“Jones”),InfoWars, LLC (“InfoWars”), and Free SpeechSystems, LLC (“Free Speech Systems”)
- Derrick Wilburn (“Wilburn”), Michele Hickford (“Hickford”), and Words-N-Ideas, LLC (“Words-N-Ideas”)
The sections below the fold that I have carefully copied from the judge's decision relate to two sections that deal with 1. how Brennan Gilmore qualifies as a 'limited purpose public figure' 2. how the judge found our works to be of 'actionable' content published with 'actual malice' 3. the judge's specific findings in my own case and lastly, 4. the judge's refusal to consider motion for immunity and attorney's fees.
Allan West has been dropped from the lawsuit. All others remain.
I will be focusing a bit more on this action as I was waiting to hear what the judge was going to rule in the matter before providing additional cover on the story.
Depending on how I choose to move forward on this case, I will have to set up a GoFundMe in the near future for legal fees. Right now I am going to consult with my attorney, see what I owe so far and make a decision based on that. The judge didn't seem to care that I simply posted my opinion on a little blog and that I am disabled living in Florida where I don't have a reasonable chance to defend myself adequately as per the 14th amendment of the constitution.
Ironic isn't it that the whole point of the 'controversy' stimulated by the conflicts at the Unite the Right rallies in Charlottesville was one that centered on the unconstitutional argument that 'certain speech should not be allowed' and here we are with this guy suing us basically claiming the same thing with regard to reporting.
It's also interesting that Gilmore has said repeatedly that he hopes this lawsuit will make others 'think twice' before voicing their opinions online in the future.
the following is taken directly from Judge Norman Moon's decision:
B. Gilmore’s Defamation Claims
Defendants contend under Rule 12(b)(6) that Gilmore fails to state claims for defamation against them.Under Virginia law, the elements of defamation are “(1) publication of (2) an actionable statement with (3) the requisite intent.”Choi v. Kyu Chul Lee, 213 F. App’x 551, 552 (4th Cir. 2009) (quoting Jordan v. Kollman, 612 S.E.2d 203, 206 (Va. 2005)). No party disputes that the statements at issue here were published online for third parties to view and digest. Thus, the Court’s inquiry focuses only on whether Gilmore adequately alleges that the statements at issue are actionable and that Defendants published these statements with the requisite intent.The Court first addresses what level of intent Gilmore must allege.
1.Gilmore Qualifies as a Limited-Purpose Public Figure.
“The requisite intent a plaintiff must prove in a defamation action depends upon the plaintiff’s status as a public or private figure.” Reynolds v. Pionear, LLC, No. 3:15-cv-209, 2016 WL 1248866, at *5 (E.D. Va. Mar. 25, 2016). Plaintiffs who qualify as private figures must show that the defendant who published an allegedly defamatory statement either “knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.” Askew v. Collins, 722 S.E.2d 249, 251 (Va. 2012). Plaintiffs who qualify as public officials, public figures, or limited-purpose public figures must show that a defendant published the allegedly defamatory content with “actual malice.” Eramo v. Rolling Stone, LLC, 209 F.Supp.3d 862, 871 (W.D. Va. Sept. 22, 2016) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). The Court defines the actual malice standard after assessing whether Gilmore qualifies as a private or public figure.
Gilmore is presumed to have been a“private individual at the time of publication, subject to defendants’ burden of proving” that he was a “public official or a limited-purpose public figure.” Id. Defendants argue that Gilmore qualifies as a limited-purpose public figure.40(Dkts. 47 at 61–64; 57 at 18–19). “When a person thrusts himself into the forefront of public debate, he is treated as a ‘limited-purpose public figure’ for purposes of comment on issues arising from that debate.” Carr v. Forbes, Inc., 259 F.3d 273, 278 (4th Cir. 2001).
In deciding whether a plaintiff qualifies as a limited-purpose public figure, the Court must ask “whether a public controversy gave rise to the defamatory statement[s]” and “whether the plaintiff’s participation in that controversy sufficed to establish him as a public figure within the context of that public controversy.” Id. Defendants must prove that “(1) the plaintiff had access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public-figure status at the time of the alleged defamation.” Eramo, 209 F.Supp.3d at 869 (quoting Fitzgerald v. Penthouse Int’l, Ltd., 691 F.2d 666, 668 (4th Cir. 1982))
[40 Defendants aver that Gilmore is also a public official, since he is currently on leave from his role as a Foreign Service Officer with the U.S. State Department. (Dkts. 57 at 20, n.14; 90 at 17–18, n.11; Am. Comp. ¶ 13).The Court has serious doubts about the merits of this claim. See Horne v. WTVR, LLC, 893 F.3d 201, 207 (4th Cir. 2018) (noting that a plaintiff qualifies as a public official if he has, “or appear[s] to the public to have, substantial responsibility for or control over the conduct of governmental affairs”). But the Court need not decide this issue, because Gilmore qualifies as a limited-purpose public figure, subjecting him to the same actual malice standard applicable to public officials.]
Before assessing whether Defendants satisfy this test, the Court must make the“threshold determination” whether a public controversy gave rise to the alleged defamation and, if so, decide “the scope of the controversy.”Id. A public controversy “must be a real dispute” that “in fact has received public attention because its ramifications will be felt by persons who are not direct participants.” New Life Ctr., Inc. v. Fessio, 229 F.3d 1143, at *4 (4th Cir. 2000) (unpublished table decision) (quoting Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1554 (4th Cir. 1994)). The Court “defines the scope” of a public controversy “through a fair reading of the [publications] in [their] entirety.” Eramo, 209 F.Supp.3d at 870.
Although Gilmore argues that “there was no public controversy” giving rise to Defendants’ publications, (dkt. 70 at 50), he effectively concedes that such a controversy existed, stating that “the controversial aspects of the Charlottesville events were the broader questions of white supremacy and the meaning behind the rally and counter-protests.” (Id.at 50–51). Given this statement, and having reviewed Defendants’ publications, the Court concludes that a public controversy about the meaning underlying the Unite the Right rally and associated counter-protests gave rise to Defendants’ publications. Although Defendants’ statements regarding a “deep state” conspiracy to orchestrate violence in Charlottesville were not themselves the subject of a genuine public controversy, “it would be inappropriate to shrink all controversies to the specific statements of which a plaintiff complains.” Eramo, 209 F.Supp.3d at 870. The Court finds that the publications’ broader focus on the meaning underlying the Unite the Right rally and associated counter-protests was addressed to a public controversy on that subject.
The Court next asks whether Gilmore’s “participation” in this controversy“sufficed to establish him as a public figure within the context of that public controversy.” Carr, 249 F.3d at 278. Applying the five-factor test utilized in the Fourth Circuit, Eramo, 209 F.Supp.3d at 869, the Court finds that Gilmore qualifies as a limited-purpose public figure with respect to the controversy surrounding the meaning of the Unite the Right rally and attendant counter-protests.
First, Gilmore plainly “had access to channels of effective communication.” Id. Gilmore uploaded his video of Fields’s attack to his Twitter account and subsequently “spoke with multiple television news networks and other news media to provide an eyewitness account.”(Am. Comp. ¶¶32–34). At oral argument, Gilmore conceded that he gave interviews to, at a minimum, CNN, NBC, and The New York Times in the hours and days following the rally, and that he wrote an online editorial for Politico on August 14, 2017 describing and analyzing what he witnessed in Charlottesville.
With respect to the second and third factors, Defendants have established that Gilmore “voluntarily assumed a role of special prominence in the public controversy” and “sought to influence the resolution” of the controversy. Foretich,37F.3dat1553. Gilmore admits that he spoke with the press on multiple occasions in the hours and days after the rally, (Am. Comp. ¶¶32–34), but asserts that he did so only as a “witness to history in response to their repeated requests.” (Dkt. 70 at 41). But Gilmore’s media appearances went beyond serving as a mere “witness to history.” Wells, 186 F.3d at 537. Although Gilmore did not solicit interview requests,he voluntarily “consented to appear” when asked, (Am. Comp. ¶ 35), and voluntarily penned a Politico editorial describing, and commenting on the broader significance of, what he witnessed at the rally. Having reviewed a transcript of Gilmore’s August 13, 2017 appearance on CNN, as well as the text of the August 14, 2017 Politico editorial,41the Court observes that, in addition to providing a factual account of what he witnessed, Gilmore commented on the rally organizers’ ideological views and President Trump’s reaction to the rally.42 Such public commentary, even construed in the light most favorable to Gilmore, indicates that Gilmore was not “simply giving an eyewitness account of events that [were] no longer controversial. ” Wells, 186 F.3 dat 537. Rather,Gilmore“sought to influence” the resolution of the public debate about the meaning of the rally. Hatfill,532F.3dat319. Indeed, the complaint states that part of Gilmore’s motivation for posting his footage of Fields’s attack was to rebut “media outlets [that] were suggesting the incident was something other than a deliberate attack” by showing that the “attack was a deliberate attempt to injure and kill peaceful counter-protestors.” (Am. Comp. ¶ 31). The CNN transcript and Politico editorial reflect a similar motivation to influence the burgeoning controversy about the meaning of Fields’s attack and the rally’s ideological underpinnings.Thus, the Court concludes that Gilmore “voluntarily assumed a role of special prominence in,” and “sought to influence the resolution of,” the public controversy surrounding the Unite the Right rally’s underlying meaning. Eramo, 209 F.Supp.3d at 869.43
[42 For instance, Gilmore stated on CNN that the rally’s organizers were motivated by a desire to “deny certain classes of citizens their right to exist,” and that President Trump’s response to the rally was “a failure in leadership.”(Dkt .90 at 17 (citing 2017 WLNR 25021156)). Similarly, in the Politico editorial, Gilmore wrote that the violence in Charlottesville was a “logical outcome of our escalating, toxic politics of hate, ”that“ we now have a president who has emboldened white supremacists, ”and that “the president’s refusal to specifically denounce the groups responsible for the violence...is the kind of enabling that I have seen turn other countries into bloody war zones.”(Id.at 19, n.15 (linking to editorial)). ]
The fourth and fifth factors are also satisfied here.The controversy about the rally’s underlying meaning “existed prior to the publication” of Defendants’ articles and videos. Id. Gilmore alleges that “media outlets” were “already suggesting” that Fields’s attack “was something other than a deliberate attack” prior to his Twitter post, which preceded Gilmore’s initial media appearances and the posting of Creighton’s American Everyman article (the first of Defendants’ publications). (Am. Comp. ¶ 31). Moreover, Gilmore “retained public-figure status at the time of the alleged defamation,” since his media appearances on the subject of the rally spanned from August 12, 201744(the day before Creighton’s article was published) through, at least, August 24, 2017 45(three days after the publication of Jones’s video, the last of Defendants’ publications). (Dkt. 90 at 15–19).
[44 Gilmore alleges that his media appearances began as early as August 12, 2017.(Am.Comp.¶¶33–35). Questions remain at this stage about the exact timing of these initial media appearances. However, as discussed below, Gilmore has plausibly alleged actual malice—a more stringent pleading standard than he would have to meet as a private figure—against Creighton. Thus, even were he not a limited public figure at the time of Creighton’s publication, Gilmore has satisfactorily stated a claim for defamation against Creighton.]
In sum, the Court finds that Gilmore qualifies as a limited public figure and must therefore allege that Defendants published their allegedly defamatory articles and videos with actual malice. The Court now turns to whether Gilmore adequately alleges that Defendants’ publications were actionable and published with the requisite intent.
2.Gilmore Adequately Alleges that Defendants’ Publications are Actionable and were Published with Actual Malice.
To survive Defendants’ motion to dismiss, Gilmore must plausibly allege that Defendants published “actionable statement[s]”with actual malice.Choi, 213 F. App’x at552.Under Virginia law, “[a]n actionable statement is one that is both false and defamatory.” Id. Actionable statements must also be “of or concerning” the plaintiff.Eramo, 209 F.Supp.3d at 875. See also Gazette, Inc.v. Harris, 325S.E.2d713,738(Va.1985)(noting that a plaintiff need only show “the publication was intended to refer to him and would be so understood by persons reading it who knew him”). False statements are those that “contain a provably false factual connotation.” Tronfeld v. Nationwide Mut. Ins. Co., 636 S.E.2d 447, 450 (Va. 2006). Defamatory statements are those that tend to “harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Choi, 312 F. App’x at 552. See alsoChapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) (noting that defamatory words “are those that make the plaintiff appear odious, infamous, or ridiculous”).
The First Amendment “provides protection for statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.” CACI Premier Tech., Inc., v. Rhodes, 536 F.3d 280, 293 (4th Cir. 2008) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)). Such protection applies to “rhetorical hyperbole, a vigorous epithet,” and “loose, figurative, or hyperbolic language.” Milkovich, 497 U.S. at 17, 21. See also Yeagle v. Collegiate Times, 497 S.E.2d 136, 137 (Va. 1998) (noting that “rhetorical hyperbole” is not actionable even if “insulting, offensive, or otherwise inappropriate”).
However, “a defamatory charge need not be made in direct terms; it may be made by inference, implication, or insinuation.” Perk v. Vector Res. Grp., Ltd., 485 S.E.2d 140, 144 (Va. 1997). See also Eramo, 209 F.Supp.3d at 876 (noting that if a “reasonable fact finder could conclude” that the statements “imply an assertion [of fact],the statements are not protected”).A “[defamation]-by-implication plaintiff must make an especially rigorous showing where the expressed facts are literally true.” Chapin, 993 F.2d at 1092–93. The defamatory implication must be “present in the plain and natural meaning of the words used” such that the words can be “reasonably read to impart [a] false innuendo.” Id. See also Tronfeld, 636 S.E.2d at 450 (“Although a defamatory statement may be inferred, a court may not extend the meaning of the words beyond their ordinary and common acceptance.”).In evaluating defamation-by-implication claims, “every fair inference that may be drawn from the pleadings must be resolved in the plaintiff’s favor.” Webb v. Virginian-Pilot Media Cos., LLC, 752 S.E.2d 808, 811 (Va. 2014) (quoting Carwilev. Richmond Newspapers, 82 S.E.2d 588, 592(Va. 1954)).
Statements of opinion—defined as statements that are “relative in nature and depend largely upon the speaker’s viewpoint”—are “generally not actionable because such statements cannot be objectively characterized as true or false[.]” Jordan, 612 S.E.2d at 206. However, “[f]actual statements made to support or justify an opinion . . . can form the basis of an action for defamation.” Tharpe v. Saunders, 737 S.E.2d 890, 893, n.3 (Va. 2013). Since expressions of “opinion” can “often imply an assertion of objective fact,” the U.S. Supreme Court has “refused to ‘create a wholesale defamation exemption for anything that might be labeled ‘opinion’.” Id. (quoting Milkovich, 497 U.S. at 18).
“Whether a statement is an actionable statement of fact or non-actionable opinion is a matter of law to be determined by the court.” Jordan, 612 S.E.2d at 206–07. In making this determination, courts should not “isolate parts of an alleged defamatory statement” but rather must consider the statement “as a whole.” Gov’t Micro Res., Inc. v. Jackson, 624 S.E.2d 63, 69 (Va. 2006). See also Eramo, 209 F.Supp.3d at 875 (noting that courts should “look to the context and tenor”of the publication in deciding whether statements “convey a factual connotation”). “On a motion to dismiss a [defamation] suit because of no actionable statement, the court must of course credit the plaintiff’s allegation of the factual falsity of a statement.” Chapin, 993 F.2d at 1092.
As a limited-purpose public figure, Gilmore must also allege that Defendants published their statements with actual malice. A statement is published with actual malice where a defendant has “knowledge that it was false” or acts with “reckless disregard of whether it was false or not.” New York Times Co., 376 U.S. at 280. A defendant’s “failure to investigate” or observe journalistic standards, although not determinative, is relevant to the actual malice inquiry. Eramo, 209 F.Supp.3d at 871–72. See alsoBiro v. Conde Nast, 807 F.3d 541, 546 (2d Cir. 2015) (“[R]eliance on anonymous or unreliable sources without further investigation may support an inference of actual malice”). A defendant’s “[r]epitition of another’s words” that the “repeater knows” are “false or inherently improbable” is similarly non-dispositive but relevant, as is “evidence that a defendant conceived a story line in advance” and then“set out to make the evidence conform”to that story.Eramo, 209 F.Supp.3d at 872(citations omitted). See also Harte-Hanks Commc’ns., Inc. v. Connaughton, 491 U.S. 657, 668 (1989) (noting that, although “courts must be careful not to place too much reliance on such factors,” it “cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry”)
“[C]onclusory allegation[s]” and “mere recitation[s]” of the actual malice standard are insufficient. Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012). “Nevertheless, because actual malice is a subjective inquiry, a plaintiff is entitled to prove thedefendant’s state of mind through circumstantial evidence.” Spirito v. Peninsula Airport Comm’n, 350 F.Supp.3d 471, 481 (E.D. Va. 2018). Gilmore “need only plead sufficient facts that, if proven, create a plausible inference”of actual malice.Id.The Court now examines each publication to assess whether Gilmore adequately alleges that Defendants’ statements a reactionable and were published with actual malice.
i.Creighton’s American Everyman Article & Video
Gilmore alleges that Creighton’s August 13, 2017 American Everyman article “falsely implies his knowledge of and participation in Fields’[s] attack” by asserting“as a fact” that “Gilmore’s presence during the car attack was due to his foreknowledge that the attack would happen.” (Am. Comp. ¶¶39–43).Creighton allegedly wrote the following:
Not only did [Gilmore] HAPPEN to be at the right place at the right time, but he was ALREADY recording with his camera and it was focused on that car, for SOME REASON as it drove by the corner at a reasonable rate. . . . But Brennan wasn’t filming [other cars in front of Fields’s car] was he? No. But he did film the Charger heading all the way down the street into the crowd of protestors . . . almost as if he knew it would run into them rather than simply brake and sit and wait like the other cars in front of it. Again, not a smoking gun in and of itself, but when combined with all the other coincidences surrounding his video PLUS the fact that he was ready to go with the divide and conquer establishment version of events for CNN while people were still lying on the hot pavement, it kind of makes you wonder, doesn’t it? [. . .]
[I]s it possible this man with links to Special Ops and CIA and various other black ops kinds of actors just HAPPENED to be there at a particular moment in history? Yeah, I guess that’s possible, if you’re into coincidence theories I suppose. But I’m not into such things. Clearly the State Department has a lot of disgruntled former employees who would delight in destabilizing Trump’s tenure even more than they already have. And Gilmore, like Tom[Perriello], seem[s] particularly invested in undermining the ‘alt-right’ in the lead-up to the next round of elections. Waaaaaay too much coincidence for me folks. Waaaaaay too much.
51(Id. ¶38; dkt. 29-1 at 4, 9).
Creighton allegedly made similar statements about Gilmore in his August 13, 2017 American Everyman video, stating the following:
[Gilmore] just happened to be there, at the specific place, where he could film the whole thing . . . He just happened to have his camera running, he just happened for some reason to record this car driving for five seconds, before it did anything out of the ordinary, and just happened to have the right message, just the right establishment message for CNN. . . . [Gilmore] has ties to special operations, special forces, CIA, State Department, Hillary Clinton, and Tom Perriello, who has a long career of doing this kind of thing. People will call me a conspiracy theorist because what I am suggesting here is that someone had foreknowledge, that this event was going to happen. . . . This man has every reason to want to see the support, the base for Donald Trump again mischaracterized as Nazis. . . . This guy just happens to be on that fucking corner with his camera rolling, watching that car drive by for five seconds, and he’s former State Department, and close to Tom Perriello, who is also former State Department obviously, he’s got a fucking ax to grind, that’s one hell of a goddamn coincidence, and you got to be a special kind of stupid to buy that.”(Am. Comp. ¶46).
Gilmore plausibly alleges that Creighton’s statements about him were false, defamatory, and published with actual malice. Creighton’s statements in both the article and video are “reasonably capable of conveying the defamatory innuendo” that Gilmore filmed Fields’s attack because he had foreknowledge of the attack and as part of an effort to use the rally to undermine President Trump and the “alt-right.” Pendleton v. Newsome, 772 S.E.2d 759, 765 (Va. 2015). Creighton’s statements about Gilmore are not reasonably characterized as mere expressions of opinion. Pure expressions of opinion generally are not “subject to objective verification.” Eramo, 209 F.Supp.3d at 875. But Creighton’s insinuation that Gilmore filmed Fields’s attack because he had foreknowledge of the attack and intended to use the footage for political purposes is “capable of being proven true or false.” Fuste v. Riverside Healthcare Ass’n, Inc., 575 S.E.2d 858, 862 (Va. 2003). Thus, Gilmore has adequately alleged that Creighton’s statements “contain a provably false factual connotation.” Tronfeld, 636 S.E.2d at 450.
Moreover, Gilmore plausibly alleges that Creighton’s statements were defamatory. Creighton’s insinuation that Gilmore had foreknowledge of a violent attack and filmed it for clandestine political purposes is precisely the sort of factual assertion that would tend to “harm the reputation of another as to lower him in the estimation of the community,” “deter third persons from associating” with him, and make him “appear odious” or “infamous.” Choi, 312 F. App’x at 552. Indeed, Gilmore asserts that Creighton’s publications “exposed [him] to hatred and contempt,” and“deterred friends, acquaintances, and members of the community from associating” with him.46 (Am. Comp. ¶ 50). Furthermore, Gilmore adequately alleges that Creighton’s statements are defamatory per se under Virginia law because, at a minimum, they would tend to“prejudice” Gilmore in his “profession or trade.” Fuste, 575 S.E.2d at 861. Creighton’s insinuation that Gilmore had advance knowledge of a violent attack and filmed it to undermine the President of the United States“casts aspersions” on his honesty and “carr[ies] the connotation” that he “lacks the integrity and fitness” to serve as a diplomat. Tronfeld, 636 S.E.2d at 450; JTH Tax, 8 F.Supp.3d at 741.
Finally, Gilmore’s allegations are sufficient at this stage to create a “plausible inference” that Creighton published his statements with actual malice. 47 Spirito, 350 F.Supp.3d at 481. Citing examples, Gilmore alleges that Creighton has published previous articles “accusing individuals and government entities of staging controversial and newsworthy events.” (Am. Comp.¶¶57, n.35;59,n.37). Gilmore presents these previous articles as evidence that Creighton “conceived a storyline about the events in Charlottesville” and then “consciously set out to make his false statements” about Gilmore “conform” to that storyline. (Id. ¶59). Additionally, Gilmore alleges that Creighton “departed from even the most basic journalistic standards” by, for instance, failing to “reach out” to him to“confirm the story’s statements.” (Id. ¶¶51–56). These allegations are concrete and amount to more than a “mere recitation” of the actual malice standard: Gilmore points to specific articles Creighton previously published and has a personal factual basis to know whether Creighton ever solicited comment or confirmation from him. Mayfield,674 F.3d at 378. Although neither the pursuit of a preconceived narrative nor a failure to observe journalistic standards is alone ultimately enough to establish actual malice, Gilmore’s factual allegations, taken together, are sufficiently plausible to support an inference that Creighton published statements about him with actual malice. See Spirito, 350 F.Supp.3d at 481;Eramo, 209 F.Supp.3d at 871.
In sum, the Court finds that Gilmore plausibly alleges that Creighton’s statements in the American Everyman article and video are actionable and were published with actual malice. Accordingly, Creighton’s motion to dismiss Gilmore’s defamation claim will be denied...
V. Defendants’ Motions for Immunity & Attorneys’ Fees under § 8.01-223.2
Defendants move for immunity and attorneys’ fees under Va. Code § 8.01-223.2. (Dkts. 46; 56; 58). Section8.01-223.2 provides that “[a] person shall be immune from civil liability” for a “claim of defamation based solely on statements . . . regarding matters of public concern that would be protected under the First Amendment to the United States Constitution made by that person that are communicated to a third party.” However,immunity does not apply “to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false.”54Va. Code § 8.01-223.2(A). Since Gilmore has plausibly alleged defamation with actual malice against all defendants except West—who will be dismissed for lack of personal jurisdiction—Defendants’ motions for immunity under § 8.01-223.2 will be denied. Moreover, Defendants’ motions for attorneys fees and costs under §8.01-