Massachusetts SLAPP Stories
SLAPPs in Massachusetts
- In 2006, Freda Hollander wrote five articles about projects of developer Steven Fustolo for the Regional Review, a free community newspaper in the North End neighborhood of Boston. Fustolo, claiming that the articles had caused “widespread opposition” to his development plans and, ultimately, had caused him to withdraw a zoning matter that had been pending before the Boston Zoning Board of Appeal, sued Hollander. Hollander filed a special motion to dismiss pursuant to Massachusetts’ anti-SLAPP law. On October 3, 2008, the Superior Court denied the motion, holding that Hollander’s financial compensation from the paper was a private reason for her reporting activity, which therefore could not be considered “solely” petitioning activity for purposes of the anti-SLAPP law. (See Fustolo v. Hollander, No. 06-3595, slip op. at 5 (Mass. Super. Ct. Oct. 3, 2008)). The appellate court affirmed. On appeal to the Massachusetts Supreme Judicial Court, the Citizen Media Law Project, Harvard Cyberlaw Clinic, ACLU of Massachusetts, and Lawyers’ Committee for Civil Rights of the Boston Bar Association jointly submitted an amicus curiae brief in favor of extending the protections of the Massachusetts law to journalists. A decision is expected in January, 2010. See Fustolo v. Hollander, No. 2009-P-0614 (Mass. S. Ct. Nov. 2, 2009).
- In 2002, the Islamic Society of Boston (ISB) began looking for a location to build a mosque. The Boston Herald ran stories about some ISB board members’ potential ties to terrorist organizations, and raised questions about the propriety of the state’s below-value land sale to the ISB. Congressman Michael Capuano, who had supported the ISB and the mosque, became sufficiently concerned by the Herald’s articles that at one point he called on the Department of Treasury to look into the paper’s allegations. For several years, the Boston Herald and local Fox channel monitored the building of the mosque, sometimes re-raising concerns about the ISB’s ties to terror financing groups. In 2005, the ISB brought claims of defamation and civil conspiracy against seventeen separate defendants, eight of which were media defendants. ISB alleged that the nine non-media defendants had orchestrated a concerted media campaign to thwart the ISB’s attempts to construct the mosque. The non-media defendants brought an anti-SLAPP motion to dismiss the case but the court denied the motion, holding that the defendants’ activities, which included communications with the mayor and local congresspersons, were neither aimed at, nor resulted in, any government outcome. Following the denial of the motions to dismiss, both parties began to conduct discovery. To prove the truth of their allegations (a defense to defamation), the defendants sought ISB’s financial records, and the records of certain ISB officers and directors. Two of ISB’s trustees resigned before the court compelled production of their documents. Shortly after the trustees’ resignation, the ISB voluntarily dismissed its suit as to all seventeen defendants, with no money changing hands. See Islamic Society of Boston v. Boston Herald, et. al. (Mass. Super. Ct. July 20, 2006). The CPA is designed to protect statements made to members of the government, including the mayor and congressional representatives, and is also designed to protect any citizen and journalist who speaks out on issue of public interest, such as possible ties to terrorism.
- In the mid-1990s, the Massachusetts Board of Registration in Medicine was conducting an investigation into psychiatrist Kennard Kobrin. As part of the investigation, the board asked another psychiatrist, David Gastfriend, to review and evaluate medical records and reports relating to Kobrin’s prescription practices, and to execute an affidavit about his findings. Gastfriend did so, stating in the affidavit that in his professional opinion, Kobrin deviated from the proper psychiatric standard of care, was “engaged pervasively in illegitimate prescribing and . . . widespread misconduct,” and that Kobrin’s “continued practice of medicine . . . represents a serious and immediate threat to his patients and to the public health, safety and welfare.” Notwithstanding Gastfriend’s opinion, after proceeding with disciplinary hearings, the board dismissed the charges against Kobrin. In 2002, Kobrin filed suit against Gastfriend for “expert witness malpractice or negligence,” defamation, malicious prosecution, and interference with contractual relations. Gastfriend filed a motion to dismiss under Massachusetts’ anti-SLAPP law, which protects statements made to the government. The trial court agreed that Gastfriend’s communications with the board, as part of a quasi-criminal proceeding, were protected, and dismissed the lawsuit. On appeal, however, the Massachusetts Supreme Judicial Court removed the case from the appeals court on its own initiative and reversed the trial court. The court held that, although his affidavit was submitted to a governmental body, Gastfriend had made the statements in his capacity as an expert hired by the Board, not in order to seek redress from the government as a citizen. The court therefore held his statements were not protected, denied the anti-SLAPP motion, and remanded to the lower court for further proceedings. Justice Sosman and Chief Justice Marshall vigorously dissented, noting that “absolute immunity for witnesses is the practically universal rule in this country,” and that the court had “take[n] it upon itself to narrow the protections of [Section] 59H to a smaller class of persons… rather than accept the literal statutory mandate that such protections are to be accorded to all persons – paid or unpaid, expert or lay, private or officially retained.” See Kobrin v. Gastfriend, 443 Mass. 327 (2005). The CPA protects communications with the government, including those made while a participant in a governmental process.