Will the Massachusetts Anti-SLAPP Law Protect Journalists?

The Massachusetts legislature recognized the problem of Strategic Lawsuits Against Public Participation (SLAPPs) when it enacted its anti-SLAPP legislation, Section 59H of chapter 231 of the General Laws, “An Act Protecting the Public’s Right to Petition Government” in 1994. The legislature acted after a developer sued fifteen citizens of Rehoboth who had signed a petition against a permit for the construction of six single-family residences. The suit was eventually dismissed, but not before the fifteen citizens had incurred thousands of dollars in legal fees defending against the action. (See Northern Provinces, Inc. v. Feldman, No. 91-2260 (Mass. Sup. 1992); See also an excellent history of the Massachusetts anti-SLAPP law at the Massachusetts Trial Court Law LibraryAnti-SLAPP page).

Mass. Gen. Laws Ann. ch. 231 § 59H (1994) provides for a special motion to dismiss in any civil case where a party asserts that the claims against it are “based on said party’s exercise of its right of petition” under the federal or state constitutions. The right of petition includes written statements submitted to a governmental entity in connection with issues under review by the entity, as well as any statement “reasonably likely to encourage consideration or review” by the government and any statement “reasonably likely to enlist public participation.”

However, the Massachusetts courts had narrowly interpreted the law to apply only to activity undertaken “solely” to petition, excluding any speech made in whole or in part for commercial gain, and that speech must be undertaken on one’s “own behalf as a citizen.” (See, e.g., Kobrin v.Gastfriend, 443 Mass. 327 (2005)). These two limitations have worked to exclude nearly all paid broadcasters, publishers and members of the press from the law’s protections.

Many members of the Massachusetts media and first amendment communities sought to have the law protect journalistic statements. In January of 2009, Massachusetts State Senator Creem introduced an amendment to the law that explicitly states its provisions apply to journalists.

While the bill was pending in the Massachusetts legislature, for the first time in April 2009, a Massachusetts court dismissed a suit brought by Wareham Police Chief Thomas Joyce against local newspaper the Observer and its owner, Robert Slager. The Observer moved to dismiss the suit under Section 59H, and the court granted the motion, holding for the first time that the anti-SLAPP law applied equally to commercial corporations and individual speakers and that, “[i]f a statement has the potential or intent to redress a grievance, or directly or indirectly to influence, inform, or bring about governmental consideration of the issue, it can qualify for protection as petitioning activity.” (See the Joyce v. Slager, No. 08-01240-B decision, courtesy of RCFP, here, as well as RCFP’s report on that decision.)

FASP welcomed the Joyce decision as a victory for citizen participation and a healthy press. But a few months later, a Massachusetts appeals court issued a contrary ruling in the case Fustolo v. Hollander.

In 2006, Fredda Hollander wrote five articles for the Regional Review, a free community newspaper serving the North End neighborhood of Boston. These articles reported on the activities and projects of developer Steven Fustolo, including meetings of community groups at which these activities were discussed.

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 appeals court affirmed the reasoning. 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 Under Law of the Boston Bar Association jointly submitted an amicus curiae brief in favor of extending the protections of the Massachusetts law to journalists.

At oral argument on November 2nd, the Supreme Court Justices expressed concerns that too broad an interpretation of the statute would eviscerate defamation law, while too narrow an interpretation would nullify much of the anti-SLAPP law’s protections. You can see a webcast of the oral arguments in the Suffolk Law School’s digital arhive, and see analysis at Of and Concerning and CMLP. Access available briefs at the Massachusetts Appeals Courts page.

A decision is expected in January, 2010, and FASP will monitor any developments. You can also see a summary of Massachusetts anti-SLAPP history at our Free Speech State-by-State page.

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