Tag: SLAPP

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.

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.

Earlier coverage.