Massachusetts Case Highlights Need for Broader Protection
A Massachusetts Appeals Court ruled in November that a man could proceed with his defamation suit against an ice rink that had banned him from the premises.
In 2003, West Suburban Arena (which goes by “Comets”) in Natick, Massachusetts, banned James Craig Burley from its ice rink after several parents complained about his allegedly inappropriate behavior. Arena manager John Conway wrote Burley a formal letter stating that he was not to come onto the property without permission, and sent a copy of the no-trespass letter to the Natick District Court and the police department. He also alerted his employees to the ban.
Burley sued Comets for defamation, based upon the letters to the police department and court, and upon the statements made to Comets employees. Comets answered Burley’s complaint, and, for more than three years, the parties conducted discovery and prepared the case for trial. Following discovery, Comets filed an anti-SLAPP motion. SLAPP stands for Strategic Lawsuit Against Public Participation. About 28 states have anti-SLAPP laws, to protect against lawsuits that arise from free speech or communications with the government. Normally, anti-SLAPP motions in Massachusetts must be filed within sixty days of the complaint, but in this case the judge made an exception. The trial court dismissed the claim under anti-SLAPP statute. Thereafter, pursuant to the anti-SLAPP statute, the judge awarded costs and attorney’s fees to Comets in the amount of $60,265.54. Burley appealed.
The appeals court overturned the trial court, finding that the Massachusetts anti-SLAPP law did not apply to the statements made to the employees.
Many anti-SLAPP statutes involve a two pronged inquiry. In the first place, the defendant must show that his activity is protected under the statute. If the defendant meets this burden, the burden shifts to the plaintiff to demonstrate that her claim has a minimum level of merit. If the plaintiff cannot make this showing, the claim is dismissed. This burden-shifting scheme has enormous benefits for SLAPP defendants, because it does not rely on any showing of intent; i.e., the plaintiff need not prove the defendant’s protected activity was made with bad faith, and nor must the defendant show the plaintiff has brought the instant lawsuit with malice. Mental intent is exceedingly difficult to show without discovery, and so anti-SLAPP laws requiring such showings make it more difficult for a defendant to quickly have a SLAPP dismissed, before costs have spiraled.
The Massachusetts anti-SLAPP law’s burden-shifting scheme requires the moving party to make a threshold showing, based on pleadings and affidavits, that the claims against him are based solely on protected petitioning activities and that the claims have no substantial basis other than, or in addition to, the petitioning activities. The court will look at each count and determine whether each count is based solely on protected activity. If the defendant meets his burden, the plaintiff must then show that she was actually harmed by the statements at issue, and that the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law.
In other words, the Massachusetts statute focuses almost entirely on the nature of petitioning activity, which has been fairly narrowly construed by the courts. As a defense, the plaintiff can then attempt to show the defendant’s mental state – a fact quagmire that can take months to resolve. In Massachusetts, whether the plaintiff’s claim has any merit has no bearing on whether the lawsuit is considered a SLAPP.
The case against Comets illustrates why the narrow protection Massachusetts affords is simply not adequate to deter SLAPPs. First, the court noted that, had the lawsuit been based solely on the statements made to the police and court, the anti-SLAPP law would have applied. But, the claim based on statements to employees was not considered petitioning activity. Therefore, although Comet showed evidence that the statements at issue were true (a complete defense to defamation) and that the statements to employees were mere extensions of petitioning activity under employee agency theory, Burley could proceed with his claims against it, notwithstanding any lack of merit to those claims. Even the court seemed uncomfortable with this outcome, going out of its way to “emphasize that our decision relates only to the issue presently before us — the question of relief under the anti-SLAPP statute. Comets remains free to avail itself of other procedural mechanisms to raise its various arguments as to the merits of Burley’s claims.” But of course, Comets is not entitled to fees or any other relief if the case is dismissed under traditional avenues, rather than under the anti-SLAPP law.
The proposed Citizen Participation Act would avoid the absurd result whereby a person sued for important speech must continue to defend against a meritless lawsuit brought against it, and must shoulder the costs for doing so. The Act would protect a broader range of activity than the Massachusetts statute, protecting not just petitioning activity but speech about an issue of public interest. Further, the Act would not require any party to make any showing of mental state or intent – it merely asks a plaintiff to show that a case against someone for exercising first amendment rights has some merit. Meritorious cases proceed, as they should. But meritless cases are cut off, and the plaintiff who brings a meritless case that infringes on another’s exercise of free speech or petitioning rights must pay the attorney’s fees and costs of the defendant.