COURT OF APPEALS OF VIRGINIA

Present: Judges Friedman, Frucci and Senior Judge Humphreys

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

SAMUEL ROLOFSON

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-SLAPP2statute, 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.

PUBLISHED
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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 

3 As the statements at issue were published in North Carolina, it could be argued that 

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.
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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’s5name 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 AntiSLAPP 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.
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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 antiSLAPP 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 antiSLAPP 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.
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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 crossappealed.

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 
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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 antiSLAPP 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, 
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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. 
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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).
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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 
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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 
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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).
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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)).
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“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.
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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 
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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; 
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• 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 
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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 
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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. 
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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).
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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.