COURT OF APPEALS OF VIRGINIA
Present: Judges Friedman, Frucci and Senior Judge Humphreys PUBLISHED
Argued at Fredericksburg, Virginia
SAMUEL ROLOFSON
v. Record No. 0535-23-4
BRITTANY FRASER OPINION BY JUDGE STEVEN C. FRUCCI BRITTANY FRASER JULY 30, 2024
v. Record No. 0828-23-4
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Tania M.L. Saylor, Judge
Andrew C. Nichols (Timothy P. Bosson; Charis Lex P.C.; Bosson Legal Group, P.C., on briefs), for Samuel Rolofson.
J. Andrew Baxter (Heba K. Carter; Erika M. Gnazzo; General Counsel, P.C., on briefs), for Brittany Fraser.
This consolidated appeal arises out of the dismissal of a defamation case following a plea
in bar and asks whether the circuit court erred by: (1) dismissing Samuel Rolofson’s defamation
claims against Brittany Fraser arising from a May 15, 2020 Board of Inquiry1 (“BOI”) hearing as
“qualifiedly privileged” without permitting him to present evidence of malice, (2) dismissing
Rolofson’s defamation claim against Fraser arising from an alleged defamatory statement made
on April 29, 2021; and (3) concluding that the Virginia Anti-SLAPP2 statute, Code § 8.01-223.2,
1 BOIs are investigatory boards that look into alleged misconduct of officers. 2 The acronym SLAPP stands for Strategic Lawsuit Against Public Participation. did not apply.3 The statutory construction issues presented in Fraser’s cross-appeal are matters
of first impression. For the following reasons, we affirm the circuit court on all assignments of
error.
BACKGROUND
Samuel Rolofson and Brittany Fraser are Army officers who dated briefly in 2017 while
both were stationed at Fort Bragg, North Carolina.4 After the end of their romantic relationship,
Fraser made allegations about Rolofson’s behavior to the military chain of command.
Following, his chain of command initiated an investigation, which resulted in Rolofson receiving
a General Officer Memorandum of Reprimand (“GOMOR”). The GOMOR reprimanded
Rolofson “for harassing” Fraser, “and for using [his] official duty position . . . to wrongfully
revoke the security access of an enlisted Soldier.” The GOMOR found that Rolofson “sent
[Fraser], and members of her team, text messages that made her feel uncomfortable[,]” and that
Rolofson had “demonstrate[d] a complete lack of judgment and responsibility” and “discredited”
himself.
The commanding general who reviewed Rolofson’s GOMOR ordered a BOI hearing to
determine whether Rolofson “harass[ed] Captain Fraser” and “use[d] his authority as a military
intelligence officer to remove an individual’s access” to a building. The BOI hearing was heard
on May 15, 2020. During the hearing, Fraser made numerous statements regarding Rolofson’s
behavior. Following, the BOI officers recommended Rolofson’s dismissal from the Army, but
As the statements at issue were published in North Carolina, it could be argued that 3
North Carolina law applies. The issue of whether North Carolina or Virginia law applies, however, was not discussed during litigation at the circuit court level, nor was it briefed on appeal. Accordingly, this Court will assume without deciding that Virginia law applies, pursuant to the law of the case doctrine. See Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 27 (2008). 4 Now known as Fort Liberty. -2- upon review, the Deputy Assistant Secretary of the Army for Review Boards retained Rolofson
in the service. On April 29, 2021, Fraser allegedly told Rolofson’s superiors that “she was in
fear of her life because [Rolofson] knew her address and had sued her.” Allegedly, because of
Fraser’s statements and the GOMOR, Rolofson will be administratively separated from the
Army on April 1, 2025.
On September 30, 2021, Rolofson filed a complaint for defamation in the Circuit Court of
Fairfax County. By agreement, Rolofson filed an amended complaint on December 10, 2021,
adding prayers for declaratory and injunctive relief in addition to the monetary damages. The
amended complaint alleged that the statements made by Fraser about Rolofson during the May
15, 2020 BOI hearing were defamatory. Fraser allegedly stated that Rolofson had abused his
authority by deleting Sergeant Roman Nazario’s5 name from a security computer, which limited
Nazario’s access to certain buildings. The amended complaint also alleged that Fraser had
defamed Rolofson by stating that he was a threat to her health and safety on April 29, 2021.
Rolofson asserted that Fraser’s defamatory statements had harmed him “in the form of loss of
deployment, loss of career furthering opportunities, and ostracization within his work place.”
Fraser filed a “Demurrer, Plea in Bar, and Motion to Dismiss,” asserting, in relevant part,
that Rolofson’s claims were “subject to qualified privilege” and barred under Virginia’s Anti-
SLAPP statute, Code § 8.01-223.2. In her supporting brief, Fraser argued that her statements, as
alleged in the amended complaint, were “qualifiedly privileged,” because she “had a duty to
report” the matters to military authorities during the BOI hearing. Rolofson’s responsive brief
countered that Fraser had defamed him maliciously, which defeated her claims of privilege and
immunity.
5 Fraser alleges that Rolofson accused her of having an inappropriate relationship with Sergeant Nazario, a non-commissioned officer who was also stationed at Fort Bragg. -3- At an evidentiary hearing to address the statute of limitations’ effect on additional
statements Rolofson alleged Fraser made in 2017 and claims of qualified privilege, and anti-
SLAPP protections for all alleged statements made by Fraser, the parties disagreed regarding
whether the circuit court needed to hear evidence. Fraser wanted to present evidence, and
because she bore the burden on the plea in bar, the circuit court permitted her to introduce
evidence she thought necessary to meet her burden.
Fraser did not address her qualified privilege defense at the hearing. Consistent with that
posture, the circuit court repeatedly stated that the “only” matters before it were the statute of
limitations issue and whether the claims were barred by the anti-SLAPP statute.
Captain Guybert Paul, a judge advocate for the United States Army, also testified at the
plea in bar hearing.6 Captain Paul had prosecuted Rolofson at the May 15, 2020 BOI hearing,
which was presided over by a colonel and two lieutenant colonels. The presiding officers at BOI
hearings generally must determine whether questions or charges by a general officer are
“substantiated” by a “preponderance of the evidence.” The presiding officers then recommend
whether the subject individual should be “separate[d]” from the Army, under “honorable” or
“other than honorable” conditions. BOI hearings may involve sworn witness testimony, are open
to the public, and are subject to FOIA requests. The rules of evidence, including hearsay rules,
do not apply at BOI hearings.
At the conclusion of the hearing, the circuit court sustained the plea in bar to the 2017
statements on statute of limitations’ grounds and ordered supplemental briefing on the anti-
SLAPP statute immunity. The circuit court subsequently sustained the plea in bar, finding that
6 Captain Paul testified that the purpose of the BOI hearing is to determine whether the allegations of misconduct are substantiated by a preponderance of the evidence, and if so, to make a recommendation as to whether the accused should be separated from the military. 10 U.S.C. § 14903. -4- Fraser’s statements during the May 15, 2020 BOI hearing were “qualifiedly privileged.” The
circuit court acknowledged that a qualified privilege does not apply to statements “made with
malice” but found that Fraser’s credible testimony “was sufficient to overcome the allegations of
malice.” The circuit court further found that, although it was Rolofson’s burden to prove malice,
he had offered no evidence of malice at the hearing. Addressing the third count of defamation
for Fraser’s April 29, 2021 statement, the circuit court noted that the parties had presented no
evidence regarding those statements and that the pleadings were too conclusory and alleged
merely “an expression of [Fraser’s] opinion, which is not actionable as defamation.” The circuit
court expressly rejected Fraser’s arguments that the claims were barred under the anti-SLAPP
statute, finding that the statements at the BOI hearing were not “a matter of public concern”
under the anti-SLAPP statute and that the BOI hearing itself was not a “public hearing before the
governing body of any locality or other political subdivision.”
Rolofson objected to the circuit court’s ruling, arguing that the qualified privilege claim
was not “properly in front of the Court” during the plea in bar hearing. He asserted that Fraser
had not raised the claim at the hearing and that the circuit court had refused to allow him to
introduce evidence of malice. Rolofson also stated that the circuit court should have granted him
leave to amend his complaint. Fraser sought reconsideration of the circuit court’s anti-SLAPP
rulings. The circuit court denied the motion. Rolofson timely appealed, and Fraser cross-
appealed.
ANALYSIS
“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s
recovery.” Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Hawthorne v.
VanMarter, 279 Va. 566, 577 (2010)). “The party asserting the plea in bar bears the burden of
proof.” Id. If the “parties present evidence on the plea ore tenus, the circuit court’s factual -5- findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they
are plainly wrong or without evidentiary support.” Id. But we review de novo the circuit court’s
“application of the law to the facts.” Ferguson v. Stokes, 287 Va. 446, 450 (2014).
I. The circuit court’s decision to dismiss Rolofson’s defamation claim due to qualified privilege
Rolofson challenges the circuit court’s rulings that Fraser established a qualified privilege
and that he then failed to overcome that qualified privilege by presenting evidence of malice.
Rolofson argues that the circuit court took no evidence on qualified privilege and stated twice
that the only questions before the circuit court were Fraser’s statute of limitations and anti-
SLAPP defenses. Consequently, he alleges that the circuit court was bound by his pleadings in
the amended complaint on the qualified privilege claim, which expressly alleged that Fraser had
maliciously defamed him. As we find that the record established Fraser’s statements were
absolutely privileged, we need not decide the issues of malice or qualified privilege. Banks v.
Commonwealth, 280 Va. 612, 617 (2010).
This Court will “not hesitate, in a proper case, where the correct conclusion has been
reached but the wrong reason given, to sustain the result and assign the right ground.” Id.
(quoting Eason v. Eason, 204 Va. 347, 352 (1963)). Indeed, even if the “right ground” was not
presented to the circuit court, we may sustain its judgment provided the record supports the right
ground and no “additional factual presentation is necessary to resolve the newly-advanced
reason.” Perry v. Commonwealth, 280 Va. 572, 580 (2010). The record “supports an alternative
ground for affirmance” when “all evidence necessary to that ground was before the circuit
court.” Banks, 280 Va. at 617. If that evidence was conflicting, then the record must also show
how the circuit court resolved the dispute. Id. Here, the circuit court reached the right result,
-6- though for a different reason, because the undisputed evidence before the circuit court
demonstrated that Fraser’s statements were absolutely privileged.
“In the law of defamation, there are two types of privileges – absolute and qualified.”
Isle of Wight County v. Nogeic, 281 Va. 140, 152 (2011). Where qualified privilege can be
defeated by a showing of malice, “the maker of an absolutely privileged communication is
accorded complete immunity from liability even though the communication is made maliciously
and with knowledge that it is false.” Id. (quoting Lindeman v. Lesnick, 268 Va. 532, 537
(2004)).
The rule of absolute privilege “is broad and comprehensive, including within its scope all proceedings of a judicial nature whether pending in some court of justice, or before a tribunal or officer clothed with judicial or quasi-judicial powers,” and includes “any proceeding for the purpose of obtaining such remedy as the law allows.”
Givago Growth, LLC v. Itech AG, LLC, 300 Va. 260, 265 (2021) (quoting Penick v. Ratcliffe,
149 Va. 618, 627-28 (1927)). “The purpose underlying the absolute privilege is that ‘the public
interest is best served when individuals who participate in lawsuits are allowed to conduct the
proceeding with freedom to speak fully on the issues relating to the controversy.’” Id. (quoting
Watt v. McKelvie, 219 Va. 645, 651 (1978)).7
7 As mentioned, absolute privilege goes “beyond the actual courtroom” and is extended to proceedings that are judicial in nature because of the safeguards in place, such as liability for perjury or the applicability of the rules of evidence. Lindeman, 268 Va. at 537. For example, because a claimant seeking to perfect a mechanic’s lien must appear in the clerk’s office “and make oath before a notary public,” the “filing of the memorandum of mechanic’s lien constitutes a judicial proceeding,” and statements within the memorandum are “absolutely privileged” if they are “relevant and pertinent to the case.” Donohoe Constr. Co. v. Mt. Vernon Associates, 235 Va. 531, 538-39 (1988). Similarly, “certain proceedings before” the Workers’ Compensation Commission “involve a quasi-judicial body contemplated by the privilege because the Commission, upon receipt of evidence submitted under penalty of perjury, resolves facts and legal disputes falling within its statutory authority between parties who seek to have their disputes . . . resolved.” Lindeman, 268 Va. at 537-38. -7- In the case at hand, Captain Paul’s description of the BOI hearing provides overwhelming
and uncontested evidence that Fraser’s statements made during the May 15, 2020 BOI hearing
are absolutely privileged. BOI hearings are conducted before a panel of unbiased higher-ranking
officers, who consider sworn witness testimony and other evidence and can be questioned
through voir dire at the hearing. The hearings are open to the public and subject to FOIA
requests. The record indicates that Rolofson participated at the hearing and had the assistance of
counsel. Further, Rolofson was ordered to appear in front of this BOI to determine whether the
allegations were substantiated and whether the Board should recommend his separation from the
Army. Thus, Fraser’s allegedly defamatory statements were made “before a tribunal or officer
clothed with judicial or quasi-judicial powers.” Givago Growth, 300 Va. at 265. In that context,
the public interest is best served by permitting witnesses to “speak fully,” under penalty of
perjury, so that the BOI can resolve the dispute before it. Id. Accordingly, the undisputed
evidence demonstrated that Fraser’s statements at the BOI hearing were absolutely privileged.
Therefore, although for a different reason, we affirm the circuit court’s judgment dismissing
Rolfson’s defamation claims that were based on those statements.
II. The circuit court’s decision to dismiss Rolofson’s defamation claim as to the April 29 2021 statement due to its being an expression of opinion8
Rolofson also challenges the circuit court’s finding that the April 29, 2021 statement was
an expression of opinion.9 In Virginia, to successfully plead a defamation claim, the plaintiff
must allege facts to establish (1) publication of, (2) an actionable statement, (3) with requisite
intent. Schaecher v. Bouffault, 290 Va. 83, 90 (2015). Notably, “expressions of opinion are not
8 Whether Fraser’s statement about her then frame of mind is defamatory on its face was not addressed by either party and so this Court does not include it in its analysis. 9 This presents the Court with a question of law that it analyzes de novo. Cashion v. Smith, 286 Va. 327, 336 (2013). -8- actionable as defamation.” Lewis v. Kei, 281 Va. 715, 727 (2011). An idea expressed in opinion
is never “false” within the scope of the First Amendment of the United States Constitution, and
“however pernicious an opinion may seem, we depend for its correction not on the conscience of
judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S.
323, 339-40 (1974). “[W]hen a statement is relative in nature and depends largely on a speaker’s
point of view, that statement is an expression of opinion.” Hyland v. Raytheon Tech. Sers. Co.,
277 Va. 40, 47 (2009).
In the case at hand, the record demonstrates that the April 29, 2021 statement by Fraser
was an opinion. Rolofson alleges that Fraser “stated she was in fear of her life because
[Rolofson] knew her address and had sued her,” even though Rolofson had “not contact[ed] her
for a number of years.” Clearly, the conclusion by Fraser that she was in “fear of her life” was
relative to the nature of her own personal knowledge: She formed this opinion based on her
knowledge that he had sued her and knew where she lived. Accordingly, her statement of her
then state of mind (“fear of her life”) largely depended on her subjective point of view and
therefore is an expression of opinion. Indeed, Rolofson’s counter-assertion in the second part of
that paragraph, intimating that she should not be in fear of her life, is likewise an opinion largely
dependent on his own subjective viewpoint: He formed this opinion based on his knowledge that
he had not contacted her in years. Accordingly, we find as a matter of law that the statement
made by Fraser on April 29, 2021, is an expression of opinion. Therefore, the circuit court did
not err when it dismissed Rolofson’s defamation claim for this statement.
III. The circuit court’s denial of leave to amend
Rolofson also argues that the circuit court abused its discretion by dismissing his
defamation claim without granting him leave to amend. Review of a circuit court’s “decision to
grant or deny a motion” for leave to file an amended complaint “is limited to the question -9- whether the trial court abused [its] discretion.” AGCS Marine Ins. Co. v. Arlington Cnty., 293
Va. 469, 487 (2017) (quoting Lucas v. Woody, 287 Va. 354, 363 (2014)). Although a pleading
may not be amended “after it is filed save by leave of court,” Rule 1:8 provides that “[l]eave to
amend shall be liberally granted in furtherance of the ends of justice.” Generally, a circuit court
need not grant leave to amend when the proffered amendments “are legally futile,” or “where
there is no proffer or description of the new allegations.” AGCS, 293 Va. at 487 (citing Rule
1:8). Other relevant considerations include “whether the court previously granted leave to
amend” and “how long the case has been pending.” Doe By and Through Doe v. Baker, 299 Va.
628, 656 (2021) (citing Ogunde v. Prison Health Servs., Inc., 274 Va. 55, 67 (2007)).
Here, the record demonstrates that the circuit court previously granted Rolofson leave to
file an amended complaint. Moreover, when Rolofson objected to the circuit court’s order
dismissing count three of his amended complaint, he did not proffer any new allegations he
would include in a second amended complaint that would overcome the circuit court’s finding
that the statement was an opinion from which a defamation claim could not arise. Rather, he
merely stated, “as to the statement not being clearly pled, [he] should have been provided an
opportunity to replead to clarify.” Given those circumstances, the circuit court did not abuse its
discretion by not granting Rolofson leave to amend.
IV. The circuit court’s ruling regarding Virginia’s anti-SLAPP Statute
Fraser argues that, although the circuit court ruled in her favor, it erred by not applying
the immunity provided under Virginia’s Anti-SLAPP statute, Code § 8.01-223.2(A). She asserts
that the circuit court erred in holding that the statements at issue in the case did not regard
“matters of public concern that would be protected under the First Amendment to the
- 10 - Constitution of the United States” within the meaning of Code § 8.01-223.2(A)(i).10 She
likewise argues that the circuit court erred in holding that the BOI hearing was not a “public
hearing before the governing body of any locality or other political subdivision or a public
hearing before the board, commission, agency or authority of any such governing body or
political subdivision or any other governing body of local government” under Code
§ 8.01-223.2(A)(ii).11 Fraser argues that the proper test for determining whether a matter is of
public concern is whether its content implicates the public welfare. She contends that the
standards of conduct for the military services are such a matter. She also reiterates that the BOI
hearing related to Rolofson’s fitness to retain his “position of trust to protect the Constitution, the
United States and its citizens,” which Fraser sees as “a matter of public concern.”
“Under well-established principles, an issue of statutory interpretation is a pure question
of law which we review de novo.” Dep’t of Taxation v. R.J. Reynolds Tobacco, 300 Va. 446,
454 (2022) (quoting JSR Mech., Inc. v. Aireco Supply, Inc., 291 Va. 377, 383 (2016));
Wintergreen Homestead, LLC v. Pennington, 76 Va. App. 69, 74 (2022). “The ‘primary
objective of statutory construction is to ascertain and give effect to legislative intent.’” Grethen
v. Robinson, 294 Va. 392, 397 (2017) (quoting Turner v. Commonwealth, 226 Va. 456, 459
(1983)); Chenevert v. Commonwealth, 72 Va. App. 47, 56 (2020). “That intention is initially
found in the words of the statute itself, and if those words are clear and unambiguous, we do not
10 Fraser argues that she was entitled to immunity under the statute because the challenged statements related to Rolofson’s misconduct and fitness to serve as an active duty servicemember. Viewed in that light, Fraser contends that the statements addressed a matter of public concern under Code § 8.01-223.2(A)(i). 11 Fraser contends the BOI was a public hearing before a board or political subdivision, namely, the United States Army, which she argues makes her statements at that hearing protected under Code § 8.01-223.2(A)(ii). - 11 - rely on rules of statutory construction.” Palmer v. Atlantic Coast Pipeline, 293 Va. 573, 578
(2017) (quoting Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91 (1997)).
“[W]hen the language of an enactment is free from ambiguity, resort to legislative history
and extrinsic facts is not permitted because we take the words as written to determine their
meaning.” Conner v. City of Danville, 70 Va. App. 192, 205 (2019) (quoting Newberry Station
Homeowners Ass’n, Inc. v. Bd. of Supervisors of Fairfax County, 285 Va. 604, 614 (2013)).
“[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious,
narrow, or strained construction.” Grethen, 294 Va. at 397 (quoting Turner, 226 Va. at 459).
Settled principles of statutory construction also dictate that statutes “in derogation of the
common law are [themselves] to be strictly construed and not to be enlarged in their operation by
construction beyond their express terms.” Shoemaker v. Funkhouser, 299 Va. 471, 484 (2021)
(alteration in original) (quoting Wetlands Am. Tr., Inc. v. White Cloud Nine Ventures, L.P., 291
Va. 153, 165 (2016)); Isbell v. Commercial Inv. Assocs., 273 Va. 605, 613 (2007) (quoting
Chesapeake & Ohio Ry. Co. v. Kinzer, 206 Va. 175, 181 (1965)). “[O]ur duty [is] to interpret
the statute as written and when this is done our responsibility ceases.” Cornell v. Benedict, 301
Va. 342, 349 (2022) (quoting Tvardek v. Powhatan Vill. Homeowners Ass’n, 291 Va. 269, 277
(2016)).
A. SLAPP suits and anti-SLAPP statutes
“The acronym ‘SLAPP’ . . . was coined in the 1980s to refer to ‘meritless suits brought
by large private interests to deter common citizens from exercising their political or legal rights
or to punish them for doing so.’” Bristol Asphalt Co., v. Rochester Bituminous Prods., Inc., 227
N.E.3d 1019, 1031 (Mass. 2024) (quoting Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d
935, 939 n.7 (Mass. 1998)).
- 12 - “Generally speaking, anti-SLAPP statutes aim to weed out and deter lawsuits brought for
the improper purpose of harassing individuals who are exercising their protected right to freedom
of speech.” Fairfax v. CBS Corp., 2 F.4th 286, 296 (4th Cir. 2021). Virginia is one of many
states that have adopted an anti-SLAPP statute.
As relevant to Fraser’s appeal, Virginia’s anti-SLAPP statute12 provided as follows:
A. A person shall be immune from civil liability for a violation of § 18.2-499, a claim of tortious interference with an existing contract or a business or contractual expectancy, or a claim of defamation based solely on statements (i) 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 or (ii) made at a public hearing before 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. The immunity provided by this section shall not apply to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false.
B. Any person who has a suit against him dismissed or a witness subpoena or subpoena duces tecum quashed pursuant to the immunity provided by this section may be awarded reasonable attorney fees and costs.
Code § 8.01-223.2; 2020 Va. Acts ch. 824 (emphases added). At issue in the appeal are both
Code § 8.01-223.2(A)(i) and (A)(ii). With this framework in mind, we address each provision in
turn.
12 Code § 8.01-223.2 was amended effective July 1, 2020, so arguably the earlier version might apply because the challenged statements were made on May 15, 2020. But the only difference between the statutory language following the 2020 amendment was an expansion of the availability of attorney fees for a quashed witness subpoena or subpoena duces tecum, which is not at issue here. The statute was amended again effective July 1, 2023, after the trial court had ruled. See 2023 Va. Acts chs. 462, 463. - 13 - B. Matters of Public Concern
Code § 8.01-223.2 does not define “matters of public concern”; instead, it tethers the
statutory immunity provided to statements protected by the First Amendment. “[S]peech
concerning public affairs is more than self-expression; it is the essence of self-government.”
Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75
(1964)); Connick v. Myers, 461 U.S. 138, 145 (1983) (same). “Courts begin the First
Amendment inquiry by assessing whether the speech at issue relates to a matter of public
concern.” Liverman v. City of Petersburg, 844 F.3d 400, 406 (4th Cir. 2016). “The inquiry into
the protected status of speech is one of law, not fact.” Connick, 461 U.S. at 148 n.7.
“Speech involves a matter of public concern when it involves an issue of social, political,
or other interest to a community.” Carey v. Throwe, 957 F.3d 468, 475 (4th Cir. 2020) (quoting
Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc)); Campbell v. Galloway, 483
F.3d 258, 267 (4th Cir. 2007) (same). “By contrast, if the speech at issue merely implicates a
‘purely personal’ topic, the First Amendment does not apply and our analysis comes to an end.”
Carey, 957 F.3d at 475 (quoting Liverman, 844 F.3d at 406). “[M]any ordinary disputes in the
public workplace should be settled or resolved without calling the heavy artillery of the
Constitution into play.” Brooks v. Arthur, 685 F.3d 367, 371 (4th Cir. 2012).
“[F]or speech to rise to the level of public concern, it generally must involve at least
some objective nexus to the public welfare, beyond the simple fact that its subject happens to be
a public employee.” Carey, 957 F.3d at 478. So, the question before the Court is “whether the
public employee was speaking as a citizen upon a matter of public concern or as an employee
about a matter of personal interest.” Brooks, 685 F.3d at 371 (quoting McVey v. Stacy, 157 F.3d
271, 277 (4th Cir. 1998)); Cromer v. Brown, 88 F.3d 1315, 1325 (4th Cir. 1996) (same). That
question is resolved “by examining the ‘content, form and context’ of his speech.” Cromer, 88 - 14 - F.3d at 1325 (quoting Connick, 461 U.S. at 147-48); Urofsky, 216 F.3d at 406. This inquiry is
“case- and fact-specific.” Campbell, 483 F.3d at 269 (quoting Connick, 461 U.S. at 147-48).
Speech generally is about “a public matter” when the content addresses such topics as:
• “discriminatory institutional policies or practices,” Brooks, 685 F.3d at 372;
• “the operations and policies of the Department,” Liverman, 844 F.3d at 408;
• “the inability of the [organization] to carry out its vital public mission effectively,” Cromer, 88 F.3d at 1325-26;
• “improper treatment of members of the public” and discriminatory treatment of female officers, Campbell, 483 F.3d at 270;
• a new policy under consideration by a school board, Loudoun Cnty. School Board v. Cross, No. 210584, 2021 Va. LEXIS 141 (Aug. 30, 2021) (order); or
• a high school football coach’s recruiting practices and behavior around student athletes, Harless v. Nicely, 80 Va. App. 678 (2024).
Conversely, “[p]ersonal grievances, complaints about conditions of employment, or
expressions about other matters of personal interest do not constitute speech about matters of
public concern that are protected by the First Amendment, but are matters more immediately
concerned with the self-interest of the speaker as employee.” Campbell, 483 F.3d at 267
(emphasis added) (quoting Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir.
1992)). Moreover, “[w]hen public employees make statements pursuant to their official duties,
the employees are not speaking as citizens for First Amendment purposes.” Id. at 266 (quoting
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)).
Turning to the form and context of the speech, various courts have held that speech
addressed a matter of public concern when it was:
• designed “to reach as broad a public audience as possible,” Snyder, 562 U.S. at 454;
- 15 - • directed to the public, Borough of Duryea v. Guarnieri, 564 U.S. 379, 398 (2011); Liverman, 844 F.3d at 410 (noting that Facebook posts suggest an intent to communicate with the public); or
• in the form “of a group complaint,” Cromer, 88 F.3d at 1325-26.
The forum in which the speech occurred is also important. Massaro v. Fairfax County,
95 F.4th 895, 906 (4th Cir. 2024). Typically, invoking “an internal grievance procedure” does
“not seek to communicate to the public or to advance a political or social point of view beyond
the employment context.” Id.; Brooks, 685 F.3d at 373 (stating “[a]n employee . . . who seeks
primarily resolution of his personal situation through an employer-provided grievance process
simply does not speak with the civic intent necessary to invoke the First Amendment”).
Applying the above framework to the facts of this case, we conclude that the circuit court
correctly held that Fraser’s statements at the BOI did not address a “‘matter of public concern
that would be protected under the First Amendment to the United States Constitution,’ and as
such, do not receive the protection of Virginia Code § 8.01-223.2(A)(i).” Fraser’s statements
“through ‘an internal grievance procedure’” indicated that she did “not seek to communicate to
the public or to advance a political or social point of view beyond the employment context.”
Brooks, 685 F.3d at 373 (quoting Borough of Duryea, 564 U.S. at 398).
Fraser resists this conclusion by asserting that the BOI was convened to consider
Rolofson’s “alleged misconduct, substandard performance of duty, or conduct” that was
“incompatible with military service.” Fraser insists that “whether the Army adheres to” its
standards for officer conduct, including the mismanagement of personal affairs and conduct
unbecoming an officer” is a matter of public interest. Perhaps that is true, but Fraser’s
challenged statements did not address whether the Army adheres to its standards for officer
conduct—either as a systemic issue or in Rolofson’s case. Rather, Fraser’s statements concerned
her personal allegations against Rolofson concerning his personal conduct. Nothing in the record - 16 - indicates that Fraser was attempting to speak with the public or that her statements addressed the
Army’s ability—as an organization—to meet its public mission. Fraser’s reliance on Ellis v.
Shirikawa, 2021 WL 5112829 (D. Me. 2021), and Hammond v. Lovings, 2016 U.S. Dist. LEXIS
187597 (W.D. Tex. May 25, 2016), is misplaced because those cases applied state anti-SLAPP
statutes that are much broader than Virginia’s.
“We do not diminish the significance of personal grievances to the parties involved” and
acknowledge that the Army reprimanded Rolofson, consistent with its procedures and process;
“but private concerns are just that: significant chiefly to the parties involved. The First
Amendment demands more.” Brooks, 685 F.3d at 376. Finally, although Fraser argues
strenuously that she was entitled to immunity because the purpose of anti-SLAPP statutes is to
protect citizens from “frivolous” and vexatious litigation, the circuit court did not find
Rolofson’s claims frivolous, and the face of the pleadings indicate that he genuinely was seeking
personal redress to try to salvage his military career.
C. The United States Army does not qualify as the “governing body of any locality or political subdivision”
“Adhering closely to statutory texts, Virginia courts presume that the legislature chose,
with care, the words it used when it enacted the relevant statute.” Cornell, 301 Va. at 349
(quoting Tvardek, 291 Va. at 277). “The act of choosing carefully some words necessarily
implies others are omitted with equal care.” In re Brown, 295 Va. 202, 223 (2018) (quoting
Rickman v. Commonwealth, 294 Va. 531, 540 n.3 (2017)). “The one canon of construction that
precedes all others is that we presume that the legislature says what it means and means what it
says.” Cornell, 301 Va. at 349 (quoting Tvardek, 291 Va. at 277).
The circuit court ruled that the BOI hearing was not “‘a public hearing before the
governing body of any locality or other political subdivision’ or a public hearing before the
- 17 - board, commission, agency or authority of any such governing body or political subdivision or
any other governing body of local government,” and thus “not the type of public hearing
contemplated” by Code § 8.01-223.2(A)(ii). That ruling follows the statutory language.
Code § 8.01-223.2(A)(ii) protects statements “made at a public hearing before 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.” (Emphases added).
Fraser’s argument focusing on what comprises a “public hearing” elides the significant
limitation within Code § 8.01-223.2(A)(ii) on the reach of Virginia’s anti-SLAPP statute.
Although some states have defined governing bodies quite broadly, Virginia has not. The plain
words of the statute limit its protections. We cannot ignore the limiting words “locality” and
“local government” in the enactment and presume that the legislature meant something broader.
Cornell, 301 Va. at 349.
Fraser argues that the 82nd Airborne Division is a political subdivision under Code
§ 8.01-223.2. Political subdivision, as defined in Code § 15.2-5101, means a locality or any
institution or commission of the Commonwealth of Virginia. The Army is a service branch of the
United States Armed Forces and is organized within the Department of the Army, a federal
government agency. It would be a strain of logic to try and categorize the Army, a military
branch, as a political subdivision as the legislature contemplated when drafting the anti-SLAPP
statute. The emphasis throughout Code § 8.01-223.2 is on local entities and other governing
bodies that have been given authority by the Commonwealth. Further, it appears that Code
§ 8.01-223.2 refers to counties, cities, towns, and governing bodies that are owned or controlled
by the Commonwealth. For example, a county is a political subdivision of the state for the
purpose of civil administration of such powers as may be delegated by the state. Kirkpatrick v. - 18 - Bd. of Supervisors, 146 Va. 113 (1926). Although the BOI was a board, which is referenced in
Code § 8.01-223.2, it is not a board of a locality or other political subdivision.13
Accordingly, the 82nd Airborne Division of the Army is clearly not a political
subdivision of the Commonwealth that would be included under Code § 8.01-223.2. Therefore,
the circuit court did not err in its ruling that Code § 8.01-223.2 did not apply in this case.
V. Attorney Fees
Finally, Fraser claims that because she was entitled to immunity under Code
§ 8.01-223.2(A), she was entitled to attorney fees under Code § 8.01-223.2(B). Fraser argues
that the circuit court erred when it denied the award of attorney fees and costs Code
§ 8.01-223.2(B) permits.
Any person who has a suit against him dismissed or a witness subpoena or subpoena duces tecum quashed pursuant to the immunity provided by this section may be awarded reasonable attorney fees and costs.
Code § 8.01-223.2(B).
We deny Fraser’s request for “reasonable attorney fees and costs” under subsection (B).
Under that provision of Virginia’s anti-SLAPP statute, such fees and costs may be awarded only
to a “person who has a suit against him dismissed . . . pursuant to the immunity provided by this
section.” Id. (emphasis added). Therefore, not only is such an award discretionary but it is also
13 At oral argument, counsel for Fraser argued that “board” stood alone in the disjunctive within Code § 8.01-223.2, and therefore, the application of the anti-SLAPP statute is broader than it appears. Counsel is mistaken. We conclude that the General Assembly’s intent in drafting the statute was to qualify the word “board” by the preceding limiting language of “governing body of any local or other political subdivision” connected by the use of the noun “thereof” within that sentence. Collins Dictionary states that “thereof is used after a noun to relate that noun to a situation or thing that you have just mentioned.” Thereof, Collins English Dictionary, https://www.collinsdictionary.com/dictionary/english/thereof (last visited Jul. 29, 2024). - 19 - inapplicable here where dismissal of the charges against Fraser is not based on affirmative
evidence of Fraser’s immunity under Code § 8.01-223.2(A).
CONCLUSION
Because we conclude that most of the alleged defamatory statements were made in a
quasi-judicial proceeding, they were absolutely privileged. As a result, we need not, and do not,
address whether the circuit court erred in either granting the plea in bar on qualified privilege
grounds or in denying Rolofson an opportunity to present evidence of malice. Thus, we affirm
the circuit court’s decision to dismiss Rolofson’s defamation action under the right result,
different reason doctrine as to the May 15, 2020 statements. Further, we affirm the circuit
court’s decision to dismiss Rolofson’s defamation claim as to the April 29, 2021 statement in
that it was an expression of opinion. We also affirm the circuit court’s denial of Rolofson’s
request for leave to amend the complaint. Additionally, we affirm the circuit court’s ruling that
Virginia’s anti-SLAPP statute did not apply under the circumstances of this case and as a result,
the circuit court also did not err in failing to award attorney fees and costs to Fraser.
Affirmed.
- 20 -