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

ACLU attorney Wunsch on the anti-SLAPP ruling

Sarah Wunsch, staff attorney for the ACLU of Massachusetts, e-mailed her thoughts on the state Supreme Judicial Court’s ruling that journalists are not protected by a state law prohibiting “strategic lawsuits against public participation” — also known as the anti-SLAPP statute. The Associated Press covers the ruling here. Background here. Below is Wunsch’s e-mail, presented in its entirety.

Despite our amicus brief urging otherwise, the SJC has affirmed Judge Hines’s Superior Court denial of the special motion to dismiss under the anti-SLAPP statute that had been filed by the journalist, Hollander, after she was sued by the developer, Fustolo. The unanimous opinion is written by Justice Botsford. Her opinion focuses on the fact that Hollander was not seeking to redress a grievance or to petition for relief of her own. She says, “As in Kobrin, the defendant’s conduct was not an attempt to redress a wrong he suffered, nor was he petitioning on his own behalf.”

Although the opinion says that a person is protected only if personally seeking redress of a grievance of his or her own, Justice Botsford distinguishes a case in which an attorney was given protection under the anti-SLAPP statute for his statements on behalf of his clients, and not for himself. To do that, she asserts that reporters occupy a different position with respect to a petitioning party than does the party’s attorney.

“There is nothing about the role or function of a staff reporter of an independent newspaper that by its nature renders the reporter a representative or agent of every, or indeed any, community organization that the reporter may cover,” particularly where the reporter denies representing a particular viewpoint. She contrasts this with Baker v. Parsons, where a biologist employed by an organization testified about her views and was protected by the SLAPP statute. (This reasoning seems to leave out of the equation whether the media outlet itself is the “petitioning party.” She seems to assume that it is only the community-based advocacy groups whose views the journalist is promoting.)

Thus, one of our concerns, that employees of advocacy organizations would not be protected by the anti-SLAPP statute, appears alleviated. Even if you are working for someone else as an advocate, as long as it is clear you are advocating for something, you should be protected.

Justice Botsford does reject the concept in Judge Hines’ opinion that because Hollander was paid, she had a private reason for her reporting, and was not sued for her petitioning alone. Being paid does not take a person out of the SLAPP protection.

Finally, Justice Botsford disagrees that this ruling will chill journalists. She cites New York Times v. Sullivan and the protection for reporters under that and under the fair-report doctrine.

As I read the opinion, a reporter writing news stories that are supposedly “objective” will not be protected by the SLAPP statute, despite the very broad definition of petitioning activity. If an editor or publisher wants to stir up the public to get them to support government action by focusing a series of news articles on the subject, too bad. No anti-SLAPP statute protection seemingly for the journalist despite the fact that the definition of petitioning includes this. I do not think this result is correct.

Under the Botsford decision, an opinion columnist is likely going to be protected by the anti-SLAPP statute, as is an employee of an advocacy organization. It seems that the concept of objective fair news reporting operates here to deprive news reporters of anti-SLAPP statute protection. One question is whether the newspaper publisher will be protected. The Botsford opinion talks about advocacy organizations but doesn’t seem to recognize that news media organizations can be advocacy organizations or be the “petitioning party” itself, engaged in activity that meets the definition of petitioning under the statute.

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  1. Michael Pahre

    In reading the decision, I did not come across with the same reading that an op-ed columnist would be covered by the anti-SLAPP law.

    The opinion looked to me to be ruling very strictly on whether or not the defendant was in the act of petitioning the government on his own behalf. An op-ed columnist, like a news reporter, would not fall under this narrow reading of what falls under petitioning activity, since the op-ed columnist is rarely asking for redress for something that personally impacts him; he usually seeks redress on behalf of someone else.

    It is bitter irony that the best journalist, acting with enviable impartiality, does not have the anti-SLAPP protections — but a highly-biased writer, acting with retribution in mind for wrongs he feels he has suffered personally, would. The latter would be thrown out of journalism school, but would win his motion for summary judgment under the anti-SLAPP statute.

  2. lkcape

    That the opinion was unanimous should give you a clue as to how the court views the question.

    The theses being offered by Wunsch and others were not agreed with by the court or were not raised as argument at hearing.

    This is much like Dan’s good friend Harvey Silvergate and his legal opinions…the Courts have not agreed.

    It is the Court’s view that prevails.

  3. Harrybosch

    “It is the Court’s view that prevails.”

    This just in too:

    Ice is cold.

    And water is wet.

  4. lkcape

    Now, now, your argument got shot down. No need to be bitter. 😀

  5. Jerry

    Repeating – does this throw the Fair Comment doctrine out the window? (Cf Cherry Sisters, etc.)

    • Dan Kennedy

      @Jerry: Hollander was seeking additional protection no Massachusetts journalist had had before. The SJC declined to extend the anti-SLAPP statute to journalists, even those journalists who are arguably engaged in some sort of “petitioning activity.” But the SJC took nothing away that was already there.

  6. I concur with Ms. Wunsch’s assessment.

    The other aspect of this opinion that is noteworthy is that it once more gave a nod of approval to the “electronic town green” concept that protected the comments at issue in McDonald v. Paton. As I read Fustolo and North American Exposition v. Corcoran II together, when a blogger or citizen journalist expresses his own grievance on any website that accommodates contemporaneous public comment, he is engaged in per se petitioning activity.

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