The Frustration of Fustolo

Yesterday, the Massachusetts court answered the question of whether the Massachusetts anti-SLAPP law provides protection for journalists who comment on issues of public interest.

The case, Fustolo v. Hollander, involved the issue of whether a journalist (Hollander) for a free weekly paper could invoke the statute’s protection. Hollander had been sued by a developer (Fustolo) who claimed Hollander’s articles about his projects had harmed him by stirring up such public opposition to development plans that he abandoned them.

The Massachusetts anti-SLAPP law applies broadly to five categories of activity:

[1] any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; [2] any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; [3] any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; [4] any statement reasonably likely to enlist public participation in an effort to effect such consideration; [5] or any other statement falling within constitutional protection of the right to petition government.

This language broadly mirrors that in other states, including California, Oregon, and Illinois. It seems to clearly apply to conduct that enlists public participation. Indeed, the Fustolo Court assumed without deciding that, because Fustolo’s very case centered on damage he alleged stemmed from public opposition engendered by Hollander’s articles, at least category (4) above applied.

Despite this somewhat clear interpretation, the Court nonetheless fell in line with other Massachusetts decisions that have narrowly construed a “party’s exercise of its right of petition under the constitution of the United States or of the commonwealth” to encompass only statements designed “solely” to communicate a “personal” grievance to the government.

In her decision, Justice Botsford says:

“We have read the phrase … as restricting the statute’s coverage to defendants who petition the government on their own behalf. In other words, the statute is designed to protect overtures to the government by parties petitioning in their status as citizens…. The right of petition contemplated by the Legislature is thus one in which a party seeks some redress from the government.” (Emphasis in original).

The Court declared that the anti-SLAPP law was inapplicable to Hollander’s statements, which, made for compensation and as part of a journalistic enterprise, were not petitioning activity “in the constitutional sense.”

Hollander had argued that, as a resident of the area Fustolo was developing, she did have a stake in the proceedings and so was petitioning the government on her own behalf. The Court disregarded this argument, in part because Hollander had practiced good journalism: the Court found her admission that she had been objective and fair to negate her assertion that her articles constituted her own personal petitioning activity.

In determining that the Massachusetts anti-SLAPP law does not protect journalists, the Court noted that it was not leaving journalists bereft of protection. Journalists, Justice Botsford wrote, may still avail themselves of New York Times v. Sullivan’s heightened standard. Under NY Times, a plaintiff who is a public figure must show that the person defaming him acted with actual malice, which is defined as knowledge or reckless disregard of the falsity of the statements at issue.

The NY Times standard is quite high, and is deliberately so, to encourage a thriving independent media that is not overly chilled by the specter of private liability.

But states have enacted anti-SLAPP statutes precisely because existing protections, including the NY Times standard, are inadequate to address the damage that the process of a lawsuit itself can inflict on a robust and free debate.

While a plaintiff like Hollander may well win her case under the NY Times malice standard, she and her paper will still shoulder the burden and costs of defending a lengthy lawsuit. Rather than fight such a lawsuit, many defendant newspapers and media outlets settle on condition of apology, retraction or “correction.” Meanwhile, bystanders think twice before contributing to the debate, even in the form of truthful, responsible journalism, because facing any lawsuit is too big of a risk.

State anti-SLAPP laws are designed to limit the time spent defending a frivolous lawsuit, and to allow a defendant to recover fees and costs. The Massachusetts state legislature has been considering an amendment to its anti-SLAPP law to clarify that the law applies to journalists. But even if such an amendment passes, Massachusetts journalists are left with incomplete protection; the First Circuit has held that the state’s anti-SLAPP law does not apply in federal court.

The Fustolo case resulted in a disheartening and frustrating decision that highlights the ongoing underestimation of the threat SLAPPs pose to First Amendment expression. The decision offers yet another example of why uniform, comprehensive protection for First Amendment expression is necessary. First Amendment rights are enshrined in the Constitution, and Congress can and should protect them against frivolous, retaliatory lawsuits.

The Citizen Participation Act, H.R. 4364, would provide uniform protection, by allowing any defendant in a suit implicating First Amendment rights to demand a plaintiff to show his or her case has merit before proceeding. If a plaintiff’s case is shown to be meritless, the defendant may collect the fees and costs incurred in defending against the lawsuit.

For more on the Fustolo case, see Universal Hub, Unruly of Law, Northend Waterfront and Media Nation.

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