By Dan Kennedy • The press, politics, technology, culture and other passions

An activist-journalist SLAPPs back

Adam Gaffin has posted an excellent summary of an important press-freedom case that will be argued before the state’s Supreme Judicial Court on Monday.

Fredda Hollander, an activist-journalist who once wrote for a local newspaper called the Regional Review, is arguing that a libel suit filed against her by a North End developer should be thrown out on the grounds that it amounts to harassment illegally aimed at silencing her.

The developer, Steven Fustolo, counters that the law on which Hollander is basing her claim — a state law that bans “strategic lawsuits against public participation” — was never intended to protect journalists.

Disclosure: I was a paid expert for Hollander, writing an affidavit arguing that community-based advocacy journalism should be protected under the so-called anti-SLAPP law.

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My affidavit in the anti-SLAPP case


  1. lkcape

    M.G.L. 231 Sect, 59h: Strategic litigation against public participation; special motion to dismiss

    “…The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party….”

    Emphasis added


    I don’t see where a journalist, any journalist, is prohibited from moving for dismissal under M.G.L.231.59h.

    The law, as written, insists upon a presumption of SLAPP unless otherwise determined.

    Are you arguing for, just on motion, an absolute and irrebuttable hold-harmless claim for a journalist, and thus, an automatic dismissal of a libel action no matter what the law and the facts support?

    If so, on what basis?

    (No statute that I am aware of explicitly shields a journalist from exposure to libel claims. The courts have also said, repeatedly, that freedom of the press and free speech do not automatically trump the libel laws. )

    Note also the “and” between the two conditions. It means that BOTH elements must be satisfied for the special motion to be DENIED…a fairly significant hurdle.

    So, how does being a journalist not afford him/her the same protection as other citizens? Or writ another way, what makes a journalist entitled to extraordinary protection BEYOND what is offered by the statute to the ordinary citizen?

  2. Newshound

    The extraordinary thing about a journalist is that it can be any citizen who can write or talk or communicate in some manner. In that sense, all of us share the same protection equally – in particular the First Amendment.

    What is unfortunate in our society is when a comparably financially inadequate journalist is up against someone wealthy willing to invest or harass against the public good. In such a case, the journalist has nothing to gain as an advocate for the public good.

    We have a great country and society with most certainly challenges it seems on almost every front. What seems disgraceful is when our country affords the freedoms and economics for a developer to engage in a most profitable opportunity and to be able to apportion potential proceeds in an arrogant manner against our civilization by employing a targeted loophole to slip through.

    One of the greatest challenges we face to cure, and perhaps is incurable, in our civilization are those who exploit the blessings of our society.

    • Dan Kennedy

      Newshound: Exactly right. It’s important to keep in mind that no one is claiming the anti-SLAPP law would protect a journalist against a libel suit if he or she actually committed libel. The anti-SLAPP law is designed to make it easy for a judge to stop the powerful from using the legal system as a form of harassment.

  3. lkcape

    “…It’s important to keep in mind that no one is claiming the anti-SLAPP law would protect a journalist against a libel suit if he or she actually committed libel….”

    Then what is it that you are actually arguing for?

    After all, a journalist is just as capable of filing a SLAPP motion as any other defendant.

  4. Newshound

    The only way to ultimately protect a free press and journalists is to not provide special protection. Every citizen has a right to be a journalist without license . . . a basic and vital freedom and component for our form of government.

    What is of concern is the disorderliness that can and does occur in our society whereby a meager journalist whether it be citizen-type or professional who is active with a goal towards the public good and is diminished by the financial resources of someone selfishly enjoying the opportunity to exploit our society and its well intentioned laws.

    Achieving a solution to such common violations is an extraordinary if not impossible challenge. A civilization of perfect orderliness is unlikely even though we should continue to challenge ourselves to finding unselfish improvement.

  5. lkcape

    Newshound, I agree completely.

    The moment the “journalist” becomes codified into a class afforded special protection, one faces the legal question of defining a journalist and passing on an individual’s bona fides for being a member of that class.

    Then you move on to the question of “who decides”.

    Slippery slope for a free and unfettered press.

    It is still unclear as to whether our host was supporting an open, unrestricted definition…as M.G.L. 231.59 postulates…or a special category for “journalists”.

    The plaintiff’s argument that journalists were never intended to be covered by the law is unfounded, and, because the Legislature chose specifically not to so state in the statute, the debate is spurious: Journalists are covered, just like everyone else…

    Can’t for the life of me see why, or to what good, an affidavit from a journalist/journalism professor would have on the case at hand.

    The law is the law. Everyone is entitled to file a SLAPP motion.

    If the plaintiff has no basis in law for the claim or no facts that support it, it’s a slam dunk for the defendant once a SLAPP dismissal motion is offered. Case dismissed!

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