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

My affidavit in the anti-SLAPP case

Fredda Hollander, an activist-journalist who will appear before the state’s Supreme Judicial Court on Monday, has given me permission to post the affidavit (pdf) I wrote for her at an earlier stage of her case. It’s a public document, but given that I was paid to write it, I wanted to check in with her first.

The issue at stake is fairly complicated, and really doesn’t have all that much to do with libel, even though her claim is related to a libel suit filed against her. A North End developer, Steven Fustolo, is suing Hollander for libel in connection with articles she wrote for a local newspaper, the Regional Review. Hollander counters that she did not libel Fustolo, and that his suit is a form of harassment covered by the state’s anti-SLAPP law. SLAPP stands for “strategic lawsuits against public participation.”

The anti-SLAPP statute — similar to ant-SLAPP laws in other states — is designed to protect political activists from being harassed by their well-heeled targets, who can afford to abuse the legal system as a form of intimidation. The law specifically states that “petitioning” activity is protected. Hollander’s lawyer, Harvey Shapiro, argues that the grassroots advocacy journalism Hollander engaged in qualifies as “petitioning” in the sense that she was attempting to influence government decisions.

The implications for bloggers and citizen journalists are potentially huge. Not only are such folks frequently motivated by their strong opinions on local issues, but they are far more vulnerable to being damaged by a meritless libel suit than would an established news organization. (Please note that I am not saying Fustolo’s suit is meritless. I am merely saying that, if it is, then Hollander deserves to be able to use the anti-SLAPP law in order to persuade a judge to dismiss his claim.)

Unfortunately I will not be able to attend Monday’s argument because of a family matter. Assuming all systems are go, I’ll be watching the webcast instead.

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  1. Newshound

    The freedom of journalism begins at the grassroots level.

    It is more important, by far, to preserve the right that virtually anyone can be a journalist than to preserve media giants such as the Boston Globe even though that is important, too.

    Almost anyone can afford the equipment to produce newspaper pages and finance the cost of a first edition. Even worthless, obsolete equipment can be used.

    But the starving journalist is not likely to be financially prepared to easily divert slim resources towards legal defense expenses.

    One of the extremes is the most sleazy publisher J. M. Near who lost his right to publish by Minnesota law which was overturned by a 5-4 vote in the U. S. Supreme Court to which the legal fees were paid by the publisher of the Chicago Tribune. That was a landmark, and a blessing.

    Even the controversial libel suit that the Boston Herald faced with Judge Murphy is enough to keep a major daily newspaper more carefully on its toes, and in this case close to a muzzle even though the Herald continues to carefully write and expose public wrong doing.

    The rights to a free press are constantly being challenged. Even Bartolomeo Vanzetti was on the run for a short time before being arrested with the belief he was in the law’s pursuit for distributing pamphlets knowing a cohort doing the same somehow wound up going out of a seventh floor window during interrogation by authorities.

  2. Neil

    Isn’t the point of anti-SLAPP not to determine the merit of the libel claim but to be shielded from it as a protected class?

    • Dan Kennedy

      Neil: I’d say no. Turn it around: If Fustolo’s libel suit has merit — that is, if Hollander actually wrote something about him that was false, defamatory, and made with some degree of fault on her part — then should she be able to make the suit go away by crying “SLAPP”? Obviously not.

  3. lkcape

    Could you post the appeal so we know the issue before the court?

    It seems as though the judge has ruled that there is a basis in law and that there are facts to support the cause of action.

    The initial judge will likely not be overruled on the findings of fact. They rarely are.

  4. Newshound

    The more important and overwhelming victim in this case is our society, and not just in this case but diverse activities occurring all the time.

    Fredda Hollander is an example of a personal sacrifice that is made for the public good.

    After a multi-million dollar judgment won by Judge Murphy, The Herald appears quite careful to avoid litigation. It’s style is more robust than its substance.

    Our society needs a robust, active, adventuresome press, particularly amongst other reasons, to protect it from the many who attempt to selfishly exploit our civilization.

    We need brave people such as Fredda Hollander who was in support of the good principles of citizens in the neighborhood where she reported and wrote as a journalist.

  5. Neil

    Do I have this right?

    If the author can demonstrate “reasonable factual and legal basis” for her assertions and her assertions are viewed by the court as an “exercise of right to petition” then the author is entitled to the qualified immunity provided under the anti-SLAPP statute.

    In other words, if she qualifies under the anti-SLAPP statute as a petitioner, then she need only to demonstrate her assertions have a “reasonable factual and legal basis.” If she does not qualify under the anti-SLAPP statute as a petitioner she must defend against a defamation case made by the plaintiff that attempts to prove the elements of a defamation claim, which must be demonstrated to the standard of “a preponderance of the evidence” (just barely more likley than not.)

    • Dan Kennedy

      Neil: I don’t think you have it right. An anti-SLAPP claim does not trump a libel suit if a judge believes the plaintiff has a reasonable chance of proving that the statement made about him was false, defamatory and made with some degree of fault on the part of the defendant. Invoking the anti-SLAPP law would merely make it easier for a judge to throw out a baseless claim at an early stage of the process.

      I should add that, if you look at my live blog, you’ll see that some of the justices are concerned that extending the anti-SLAPP law to the media could obliterate libel. But I don’t think that’s Harvey Shapiro’s argument, and libel has somehow survived in California, where SLAPP protection has been extended to news organizations.

  6. Neil

    the anti-SLAPP statute only provides a
    qualified immunity, protecting petitioning activities
    that have a reasonable factual and legal basis. What
    amici argue is that the simple fact of gainful
    employment by a newspaper, another media outlet or an
    advocacy organization is insufficient by itself to
    deprive an individual of the protections of the anti-
    SLAPP law.

    For the foregoing reasons, the order of the
    Superior Court denying the defendant’s special motion
    to dismiss should he reversed. Because Hollander has
    already demonstrated a reasonable basis for the
    statements for which she has been sued, this Court
    should order that her special motion to dismiss be
    granted. In the alternative, the case should be
    remanded to the Superior Court to allow the plaintiff
    a chance to show, by a preponderance of the evidence,
    (1) that Hollander’s exercise of her right to petition
    was devoid of any reasonable factual support or any
    aryuable basis in law and (2) caused him actual injury.

    ACLU Amici brief

  7. Sarah

    Dan, I think Neil does have it right. Libel suits have been altered by the passage of the anti-slapp statute. If the speech constitutes petitioning as broadly defined in the statute, then the lawsuit based on that speech gets dismissed if the plaintiff can’t show that the statements were devoid of factual or legal merit. So, yes, there have been some changes in the area of defamation law, in order to give more protection to the right to petition the government, so that people aren’t so easily subjected to these lawsuits.

    • Dan Kennedy

      Sarah: Thanks for the clarification. But what happens when a libel plaintiff, upon being hit with a motion to dismiss based on the anti-SLAPP law, comes back with enough evidence to convince a judge that he may well be able to prove statements about him were libelous? What does the judge do then? This is really unclear, at least to me.

  8. Neil

    anti-SLAPP provides immunity against libel claims, under specific conditions, and therefore precedes a finding of facts in a libel case

    The Conditions: …If the author can demonstrate “reasonable factual and legal basis” for her assertions and her assertions are viewed by the court as an “exercise of right to petition” then the author is entitled to the qualified immunity provided under the anti-SLAPP statute.

    I think the defense is asking a lot of the court primarily because finding for the defendant would mean making a precedent that few would feel comfortable living with until the legislature spoke again to qualify and clarify. … unless the legislative record already supports the broad interpretation the defense is arguing.

  9. Neil

    I don’t think the plaintiff can appeal a finding that anti-SLAPP immunity attaches by citing a vigorous and compelling argument the libel occurred.

    Anti-SLAPP immunity, when it applies, is controlling.

  10. Neil

    I have a habit of speaking authoritatively based on reasoning not informed knowledge so I must mention, IANAL.

  11. Sarah

    Dan, you ask: “But what happens when a libel plaintiff, upon being hit with a motion to dismiss based on the anti-SLAPP law, comes back with enough evidence to convince a judge that he may well be able to prove statements about him were libelous? What does the judge do then? This is really unclear, at least to me.”

    My response to your question is that the plaintiff doesn’t get to come back with evidence to prove that the statements were libelous unless he can first meet his burden under the anti-slapp statute. Specifically, if the lawsuit is based on petitioning activity, the plaintiff has to come back not with enough evidence of defamation, but by a preponderance of the evidence must show that the petitioning lacked a reasonable factual or legal basis. The defendant, the petitioner, may have made some misstatements that are harmful to the plaintiff’s reputation, but in order to give some breathing space to the right to petition, the law provides that as long as the petitioning wasn’t baseless, the slapp suit should be thrown out. Some people might think that is unfair but because society benefits when people aren’t afraid to get involved in local government issues, the statute gives them some extra protection.

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