SLAPP Suit In Virginia Tries To Silence Historian Highlighting Ancestry Of Guy Suing To Keep Confederate Statues In Charlottesville

Another day, another attempt by someone to silence people for saying something they don’t like. The latest is a history professor, who was briefly quoted in an article about another lawsuit. That lawsuit? An attempt by some Virginia residents to stop the removal of some Confederate monuments in Charlottesville, Virginia. One of the plaintiffs in that case is Edward Dickinson Tayloe II. The article, written in the publication “C-Ville” (as you’ve figured out, a publication about Charlottesville) goes a bit into the history of the Tayloe family — which goes back centuries in Virginia and apparently includes cotton plantation (and slave) owners.

The article contains two quotes from UVA history professor Jalane Schmidt. In the introduction to the article, she is quoted as saying the following about those who were suing to prevent the removal of Confederate monuments:

“You’ve got the bow tie, upscale people tied to the League of the South people who want to secede and are slavery apologists,” says activist and UVA professor Jalane Schmidt.

Later, in the section about Tayloe, she is quoted again:

Says Schmidt, “For generations this family has been roiling the lives of black people, and this is what [plaintiff Tayloe] chooses to pursue.”

This comes after multiple paragraphs describing, in fairly great detail, the history of the Tayloe family and what one might easily consider to be cruel treatment of slaves. It also includes slightly more recent history, regarding Tayloe’s father, who, as the article notes:

… was vice-chair of the Charlottesville Redevelopment and Housing Authority when the decision was made to raze the African American community of Vinegar Hill over the objections of its residents, many of whom were unable to vote on the issue because of a poll tax.

Tayloe, it seems, was not happy about the article. So he sued C-ville, the reporter on the article (Lisa Provence), and Jalane Schmidt, the history professor. As the case is in a local Virginia court, the records are not as readily available as federal cases. However, the ACLU of Virginia has stepped in to defend Schmidt and has filed quite the response to what seems clearly to be a typical SLAPP suit — seeking to silence someone for stating things you don’t like.

As the filing notes, nothing in either of Schmidt’s quotes is defamatory — and, the filing claims, the complaint makes no effort at all to even show what statements are false statements of fact:

Plaintiff fails, as a threshold matter, to specify which of Professor Schmidt’s words are allegedly defamatory…. Rather, he states that the alleged defamation occurs in the “implications” arising from the article…. Regarding Professor Schmidt’s comment about the Tayloe family “roiling the lives of black people,” Plaintiff takes issue with the context of the quotation (“Schmidt’s assertion is offered without refutation or counterpoint”) but fails to explain why the statement in and of itself is defamatory or has a defamatory implication

Ken “Popehat” White famously says that “vagueness in legal threats is the hallmark of meritless thuggery,” and that appears to be the case here. Schmidt’s quotes seem clearly to be giving her take — her non-defamatory opinion — on the history of Tayloe’s family. Tayloe may not like that, but as an apparently proud American, he might want to thank the First Amendment for allowing that kind of free speech.

There is much more in the response, which you can read below, but this case should easily be tossed out. Even if someone were to make the case that the statements at issue were factual defamatory statements towards Tayloe, Tayloe would need to prove “actual malice” — meaning that Schmidt knew the statement was false (which, she doesn’t, since she stands by her words) or that they were made with “reckless disregard” for the truth. While the suit suggests that a failure to get Tayloe’s side of the story is evidence of such negligence, that is not the standard at all, and there is no such requirement.

Thankfully, Virginia has a recently updated anti-SLAPP law that is now deemed to be “adequate” by the Public Participation Project (which advocates for better anti-SLAPP laws). Virginia’s law should be a lot better and has some flaws, but hopefully it will be applied here. Schmidt and the ACLU of Virginia are seeking attorneys’ fees under the statute, and hopefully they will succeed.

Notably, Schmidt has also written up a blog post for the ACLU talking about the chilling effects of these kinds of SLAPP suits.

Tayloe’s lawsuit against me not only fails to meet the legal requirements for a defamation case, it is also a disdainful attempt to stifle speech and prevent me from speaking out about matters of public concern. These types of claims, known as strategic lawsuits against public participation, or SLAPP suits, are designed to silence, censor and intimidate critics with the threat of costly litigation.

[….]

History belongs to everyone, not just scholars. Marginalized narratives of vulnerable groups of our community must be included in our collective story in order to inform our efforts to make changes in the present and to promote a more just and equitable future. First Amendment protections should not be stifled by lawsuits designed to make anyone fearful of the consequences of exercising their rights.

Some may argue that there is nothing exceptional about this particular SLAPP suit. It appears similar to many others that we write about here on Techdirt. And that’s a big part of the problem. These kinds of lawsuits create massive chilling effects, even if they won’t win in court. It’s also why we need much stronger anti-SLAPP laws, both at the state level and at the federal level. These kinds of lawsuits keep getting filed because the lawsuit alone is all too frequently enough to stifle critical voices.

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