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

SJC rules against journalist-activist

Adam Gaffin has already posted some details on the state Supreme Judicial Court’s ruling earlier today against Fredda Holland, a journalist who claimed that a libel suit filed against her should be dismissed on the grounds that it was aimed at putting a halt to her community activism. Gaffin has posted the full decision as well.

Hollander, a former reporter for the Regional Review, had been active in a neighborhood association along with her husband, Bill Lee. She had used her platform at the Review to oppose plans by a North End developer named Steven Fustolo. When Fustolo sued her for libel, Hollander’s lawyer, Harvey Shapiro, argued that she should be protected by the state’s anti-SLAPP law, an acronym that means “strategic lawsuit against public participation.”

For background, click here. Disclosure: I was paid to write an affidavit (pdf) on Hollander’s behalf at an earlier stage of the case.

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ACLU attorney Wunsch on the anti-SLAPP ruling


  1. Harrybosch

    Hmm. My initial instinct was to suspect that “right of petition” was a little too narrow to cover news articles on a particular topic, however the last paragraph of the statute seems so broad (especially after the semi-colon) that I am left wondering if the SJC is simply making up the law as it goes along.

    Of course, in Massachusetts, that’s par for the course.

  2. lkcape

    As I read their decision, they are trying not to make law as it goes along.

    They are refusing the extension of “petition” to something that does not involve a direct request for redress from a government entity. They were very specific in their analysis of this issue; it has root in both logic and law.

    They also refused to extend a privilege to a “journalist” just because they are a “journalist”. That seems to me that they are avoiding making up law as they go along, in spite of Dan’s argument to the contrary.

  3. Harrybosch

    “They are refusing the extension of “petition” to something that does not involve a direct request for redress from a government entity.”

    Then they are doing so in direct contravention of a law (it seems to me) which states:

    any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding

    Written statement . . . check.

    Made in connection with an issue under consideration or review by [most any governmental body] . . . check.

    If the legislature wanted to make the law narrow, they would have.

  4. Aaron Read

    @Lkcape – In a sense I agree with you, but you have to be careful throwing around the word “journalist”. That’s a big part of the problem with this case: the concept of just who is and is not a “journalist” has changed radically in the past ten years and continues to change on a nearly day-to-day basis. The courts don’t really have any case law or precedent to fall back on anymore. Or more precisely, the established case law and precedent really no longer apply…and trying to figure out what DOES apply is a very, very difficult task. You want to protect people who are journalists, but you don’t want to extend that privilege to people who are not journalists. But when a journalist can be an unemployed guy collecting a myriad array of disconnected facts posted on various places on the web, and then assembling them into a coherent story for a blog? Well, at it’s fundamental core, how exactly is that really any different than what an investigative reporter for the New York Times does?

    @Dan, what’s your thoughts on how solid Fustolo’s libel case is? This ruling just means the libel case is not thrown out and, presumably, may proceed…I have no idea if the case is so weak it’ll be booted by the judge it ends up before before the opening arguments. Or so strong that Hollander is toast.

    • Dan Kennedy

      @Aaron: I have not examined Fustolo’s libel case. Please keep in mind that I’m a paid advocate for Fredda Hollander. But speaking more generally (and as an advocate for journalism, not as any sort of legal expert), I think the anti-SLAPP law ought to trump a weak libel suit, but not a strong one.

      The whole idea of the anti-SLAPP law is to stop pure harassment. To me, a well-founded libel suit should not be considered mere harassment.

  5. Harrybosch

    “You want to protect people who are journalists, but you don’t want to extend that privilege to people who are not journalists.”

    For what it’s worth, the law itself does not distinguish between journalists and ordinary citizens.

  6. lkcape

    The definition of the word journalist also seemed to trouble the court, which is one of the reasons they elected not extend the the protection.

    Dan, the Motion Court did not conclude that the libel suit was weak or strong, merely that it should proceed to trial. He heard evidence sufficient for his conclusion and believes a trial on the merits to be appropriate. The SJC saw no reason to reverse that decision. (Remember, civil trials are decided on the preponderance of the evidence; i,e, 50.001%)

    And Harry, the Supreme Judicial Court does not agree with your thesis, which makes your thesis, at this point not very relevant. You’re pushing a rope.

    If you wish a broader interpretation, the options are an appeal of this decision (which will likely go nowhere because of the deference of the Federal Courts to the Supreme Judicial Courts on matters of Massachusetts law) or have the legislature devise more encompassing statutory language.

    Bleating about the inequity of it all is not very productive.

    • Dan Kennedy

      @Ikcape: Trial judges have been admonished by appellate courts to throw out weak libel suits at the earliest opportunity, as they are considered a threat to the First Amendment. In this case, the lower court found that the anti-SLAPP statute was simply of no consequence, and the SJC has now agreed.

      But again, speaking as a journalist, not a lawyer, it seems to me that the anti-SLAPP law could be used as an additional tool to dismiss libel suits whose main purpose is deemed to be harassment. I don’t think it makes sense to rely on SLAPP in order to stop a libel suit where there is strong evidence of false, defamatory statements made with the requisite degree of fault.

      I assume, for instance, that it would be difficult but not impossible to bring a slander suit against a community activist who would be clearly covered by the anti-SLAPP law.

  7. Jerry

    Wait. What about fair comment? Cf. Cherry Sisters v. Des Moines Leader, et al, 86 N.W. 323, Iowa 1901, in which SCOTUS subsequently ruled for the Leader. Is this precedent now nul?

  8. Harrybosch

    “And Harry, the Supreme Judicial Court does not agree with your thesis . . .”

    Not for the first time.

    “. . . which makes your thesis, at this point not very relevant.”

    With respect, it is not my thesis. I was quoting the law as written.

    One might say it is the court itself that found the law irrelevant.

    But we can agree to disagree.

  9. jeremiah

    The SJC made the right call. A reporter can not cloak himself/herself under the anti-S.L.A.P.P. And, since we are still living in the U.S.A., nothing can be used to cloak libel/defamation.
    Lastly, it’s about time someone had the guts to stand up against Hollander.

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