Sarah Wunsch, a staff attorney with the ACLU of Massachusetts, offers further analysis of how the state’s anti-SLAPP law would modify libel law if journalist-activist Fredda Hollander wins her appeal, now before the Massachusetts Supreme Judicial Court. (SLAPP stands for “strategic lawsuits against public participation,” and the anti-SLAPP law is aimed at preventing people from abusing the legal system by hauling activists into court.) Wunsch writes in part:
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.
To which I would add that though anti-SLAPP protection for journalists might offer them some extra protection against libel suits, the overall effect would probably be slight.
In most cases, I suspect, the person bringing the allegedly abusive suit (in Hollander’s case, North End developer Steven Fustolo) would be deemed a public figure. And under the U.S. Supreme Court’s 1964 Times v. Sullivan standard, a public figure can’t win a libel case unless he’s able to prove that the person he’s suing made false, defamatory statements knowing they weren’t true, or showing reckless disregard for the truth.
My standard disclosure: Hollander paid me to write an affidavit on her behalf at an earlier stage of her case.
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Fredda Hollander must be protected, not only for herself but for the neighborhood and society in general in which she endeavors to shield from harm by reporting events, perhaps not 100% accurately but close enough.
She is the victim because of the distraction this suit is to her everyday work and ideals. That is the presumed intent of the plaintiff who wins because he really didn’t need the money anyway. It is a way to still, through intimidation, expense and annoyance, circumvent the intent of NY vs. Sullivan and other prior cases. Put another way, it is a kick in the teeth to the many commercial freedoms and opportunities one can exploit in this country, all of which is protected by, in general, the media the plaintiff attempts to victimize with some, which is too much, success.
Fortunately, Ms. Hollander gains enough from making this a good experience to help soothe this annoyance.
I disagree with the conclusion that the “overall effect” of extending the Anti-SLAPP law’s protections to journalists “would probably be slight.” Keep in mind that where it applies, the Anti-SLAPP law operates to (1) prevent discovery from proceeding, (2) compel dismissal of the plaintiff’s claim, and (3) compel an award of attorney fees in favor of the defendant. Thus, the spectre of an anti-SLAPP motion will likely result in fewer libel claims being brought, and more of them being decided in the media defendant’s favor at an early stage.
That’s right, “slight” is probably not accurate. Instead of mounting a costly defense the defendant merely has to prove the statements were not baseless and that the defendant qualifies as a petitioner.