And that’s a wrap. The Supreme Judicial Court will consider the arguments it heard this morning and issue a decision at some later time. It strikes me that the questions were equally tough for both sides — that Harvey Shapiro, the lawyer for journalist-activist Fredda Hollander, and Bruce Edmands, the lawyer for developer Steven Fustolo, were kept on the defensive during their arguments. No way of saying how this will come out.
To repeat my disclosure: I was paid by Fredda Hollander to write an affidavit (pdf) for her during an earlier stage of the case.
10:03 a.m. Edmands says Shapiro is correct that the media are covered in California, but the law is very different. If Shapiro wants anti-SLAPP protection extended to the media in Massachusetts, Edmands says, then “the correct forum is not this court, respectfully, but the Legislature.”
10:01 a.m. What about letters to the editor? asks one of the justices. Isn’t that petitioning? “It doesn’t have to go directly to the government body. Every official in town reads it,” he says. Edmands responds that letters are “widely understood to be expressions of opinion by the author,” unlike “factual” news stories.
The justice follows up by asking if the publisher wouldn’t be “petitioning” by publishing the letter. Edmands replies that it would be, but that the publisher should be treated differently from a reporter.
9:57 a.m. Edmands says the anti-SLAPP statute has never been extended to the media. It’s pointed out to him that a Superior Court decision did just that. “Don’t knock the Superior Court,” says one of the justices. “Some of us are graduates of the Superior Court.”
9:55 a.m. To clarify — Hollander and her husband, Bill Lee, were active in a North End neighborhood organization. She contends that her journalism for the Regional Review was an extension of that activism.
9:53 a.m. Justice asks what about a newsletter editor railing about an issue to his or her members. Edmands reponds that that would be closer to petitioning activity, but that’s not what Hollander did.
9:52 a.m. Edmands: “I think the statute was really intended to protect people who appear before governmental body … and speak out about their concerns.”
9:50 a.m. Now we’re hearing from Bruce Edmands, lawyer for developer Steven Fustolo, who’s suing Fredda Hollander for libel.
9:47 a.m. Justice asks if all investigative reporting would be covered. Purpose is “to cover something that is wrong so that the government will take action.” Shapiro replies that, yes, such reporting would be covered by anti-SLAPP law.
9:46 a.m. Justice asks if any other jurisdiction has adopted Shapiro’s interpretation. Shapiro replies that California anti-SLAPP law covers First Amendment activity. “They have uniformly covered journalists.” But he concedes the California law is broader in terms of activities that are protected.
9:43 a.m. Justice says applying anti-SLAPP to newspaper reporter is “a whole different kettle of fish.” Shapiro responds that “it embraces broader concepts of petitioning.” He adds: “Using the press is a fundamental form of petitioning.”
9:40 a.m. The justices are concerned that Shapiro’s interpretation would obliterate libel if anti-SLAPP can be invoked.
9:39 a.m. The justices question Shapiro about the lack of a personal stake journalists generally have in the stories they cover, whether they express an opinion or not. The idea is that the anti-SLAPP law generally covers only political activists with a stake in the outcome.
9:37 a.m. Justice asks Shapiro if community newspapers should be treated differently from the Globe or the Herald. Shapiro responds that if the reporter is writing in a way that “enlists public support,” then that is “petitioning activity” and should be covered.
9:36 a.m. Harvey Shapiro, lawyer for Fredda Hollander, is arguing before the state’s Supreme Judicial Court right now.