State high court simplifies anti-SLAPP, draws picture

Notwithstanding the merits of anti-SLAPP statutes—I've opined plenty, including a catalog of problems—the Supreme Judicial Court of Massachusetts (SJC) in recent years made a mess of the state anti-SLAPP law by creating an arcane procedure that befuddled and frustrated the lower courts.

Yesterday the SJC admitted the arcanity and clarified the procedure. I'll note that one thing I like about the Mass. law is that it has a focused trigger in petitioning activity; that's not changing. It'll take me some time to work through the 50 pages of the opinion. But to my delight, there's a picture! The SJC kindly created a flow chart:

The case is Bristol Asphalt Co. v. Rochester Bituminous Products, Inc. (Mass. Feb. 29, 2024). The court then helpfully applied the new framework in another case the same day, Columbia Plaza Associates v. Northeastern University (Mass. Feb. 29, 2023). (Temporary posting of new opinions.)

The court's unofficial top technocrat, Chief Justice Scott L. Kafker authored both opinions. The court affirmed in both cases, denying the anti-SLAPP motion to strike in Bristol Asphalt and granting it in Columbia Plaza, so the lower courts waded their way to correct conclusions despite the mire.

'Civil death,' denial of tort claims, violates prisoners' right of access to courts, R.I. high court holds

N.C. State Archives public domain photo via Wikimedia Commons

The Rhode Island Supreme Court in March struck down the state "civil death" statute, which disallowed civil claims by inmates imprisoned for life.

The statute at issue states:

Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction. However, the bond of matrimony shall not be dissolved, nor shall the rights to property or other rights of the husband or wife of the imprisoned person be terminated or impaired, except on the entry of a lawfully obtained decree for divorce.

Alleging negligent maintenance, one plaintiff-inmate complained "that his arm was severely burned and permanently disfigured when he made contact with an exposed hot water pipe at the [prison]." Another alleged negligence when he slipped and fell after being compelled "to walk across an icy walkway at the [prison]." The trial court rejected both claims as barred by the "civil death" statute.

I was shocked to read of this case in my home state's Providence Journal; I never had heard of a "civil death" statute. The R.I. ACLU provided some background:

Rhode Island was apparently the only state in the country still enforcing a law like this, whose origins date back to ancient English common law. As far back as 1976, a court struck down Missouri's civil death statute, noting that "the concept of civil death has been condemned by virtually every court and commentator to study it over the last thirty years." The court observed that such laws had been characterized even before then as "archaic," "outmoded," "an outdated and inscrutable common law precept," and "a medieval fiction in a modern world." In 1937, when 18 states still had civil death laws, a law review article called the concept "outworn."

Applying the 1843 state constitution (article 1, section 5), a four-justice majority of the Rhode Island Supreme Court had little trouble reaching the conclusion that I thought was obvious, that the law violates the fundamental due process right of access to the courts.

Justice Lynch Prata
(via Ballotpedia)

Employing strict scrutiny, the court acknowledged that "civil death"

functions as an additional sanction imposed upon some of the state's worst criminals and furthers the goals of punishment and deterrence. This Court has recognized that "[t]he loss of civil status as a form of punishment is a principle that dates back to ancient societies." .... However, it is our opinion that this particular additional punishment is not a compelling reason to override the right of access to the courts that is textually guaranteed by the Rhode Island Constitution.

Justice Goldberg
(via Ballotpedia)

Even were the statute supported by a compelling state interest, it is not narrowly drawn, the court further opined, as it fails to distinguish between prisoners based on their eligibility for parole.

Justice Maureen McKenna Goldberg dissented. "Prison inmates, especially life prisoners, are not entitled to the same degree of constitutional rights as are members of society at large," she wrote, "and that includes the right to bring tort claims against the warden for a slip and fall or a burned hand." She would have narrowed the question to the plaintiffs' negligence claims and upheld the statute.

"In my more than two decades of service on this Court, I cannot recall ever having declared a statute to be unconstitutional," Justice Goldberg opined. "[T]his should not be the first case with such a drastic result in light of our longstanding jurisprudence."

The case is Zab v. R.I. Department of Corrections, No. 2019-459-Appeal (R.I. Mar. 2, 2022). Justice Erin Lynch Prata wrote the majority opinion.

A former state senator Judge Prata was nominated to the court by Governor Gina Raimondo in December 2020, just three months before she left office to become the U.S. Secretary of Commerce. Justice Lynch Prata is 2000 graduate of Catholic Law, for which I periodically teach as a visitor. Judge Goldberg is the senior-most justice on the court, having served since her appointment in 1997.

Court denies Exxon anti-SLAPP relief in Mass. climate claims; European court bemoans Russian SLAPP

AG Maura Healey

The Massachusetts anti-SLAPP statute does not work in defense of Attorney General enforcement actions, the Supreme Judicial Court decided in May in climate change litigation against Exxon Mobil Corp. Europe and the UK, meanwhile, are working out their approaches to anti-SLAPP.

I am in general anti anti-SLAPP, because the statutes are drawn too broadly. I recited my lamentations in April 2021. I support anti-SLAPP in principle when it works the way it was intended, but broadly drawn anti-SLAPP statutes create innumerable headaches and are used to protect Goliath from David as often as the other way around. Exxon's attempted reliance on the law fits the mold.

With the usual American MO, anti-SLAPP statutes try to slap an ill-fitting patchwork fix on a systemic problem, which is transaction costs in civil litigation, declaring the problem solved while in fact it festers, rotting social and political institutions from the inside out. Only when a bridge collapses does everybody momentarily notice, and then we move on.

The Massachusetts Supreme Judicial Court narrowly saved the bridge from collapse this time by rejecting Exxon Mobil's invocation of the commonwealth's typically broad anti-SLAPP statute. Exxon is defending itself against Attorney General Maura Healey. The AG accuses Exxon of deceptive statements that concealed what Big Oil knew about the climate risk of fossil fuel extraction, thus, responsibility for climate change. 

State and locality climate change lawsuits against Big Oil are proliferating in the United States and the world right now, as governments try to figure out where they will get the money to bolster infrastructure against rising sea levels and tempestuous weather events. In the context of "super torts," I wrote in November 2020 about the lawsuit against Big Oil by my home state of Rhode Island. By focusing on claims in state law, public plaintiffs such as my childhood hometown of Baltimore have managed to steer their claims into state court, evading the impact of a U.S. Supreme Court inclination to see the claims in federal court, as Big Oil defendants would prefer.

Accordingly, AG Healey is pursuing the commonwealth claim under Massachusetts's expansive unfair and deceptive practices act, chapter 93A. The powerful law affords double and treble damages and attorney fees in cases of willful and knowing violations, and it can be used as a private or public enforcement mechanism.

Exxon attempted to use the commonwealth's anti-SLAPP statute in its defense. The essence of Exxon's public statements about the environmental safety fossil fuels constituted participation in the public marketplace of ideas, Exxon asserts, so the AG's persecution is just the sort of action that anti-SLAPP should head off.

One limitation, thankfully, in the Massachusetts anti-SLAPP law is that it hinges on petition activity, not merely free speech. There is some margin around the word "petition," as the statute draws in public statements "reasonably likely to encourage consideration or review of an issue" by government. But the anti-SLAPP statute cannot be triggered simply because whatever civil wrong the defendant is accused of was accomplished by way of communication.

The AG objected to Exxon's invocation of anti-SLAPP on this distinction, because Big Oil made plenty of problematic statements to the public. I think she's right. But the court did not get that far. Rather, the court held in favor of the AG on her alternative argument, that the anti-SLAPP statute simply does not apply to public enforcement actions by the AG.

There is a questionable logic to Exxon's theory that petitioning must be protected against attack when the attacker is the petition-ee, government. A petitioner might be expected instead to make a First Amendment retaliation claim, if the attack theory holds up. Also, the anti-SLAPP statute, in a second provision, authorizes intervention by the AG on behalf of anti-SLAPP movants. So the legislature knew how to say "attorney general" when it wanted to, and the AG isn't mentioned anywhere else.

More importantly, the Supreme Judicial Court held, defense against a public enforcement action is not consistent with the legislative purpose of the anti-SLAPP statute: "The legislative history makes clear that the motivation for the anti-SLAPP statute was vexatious, private lawsuits, especially ones filed by developers to prevent local opposition to zoning approval." That's the paradigmatic case that gave birth to anti-SLAPP in 1988.

The court observed that its holding accords with one other jurisdiction that has considered the same problem. The Supreme Judicial Court of Maine declined to apply its anti-SLAPP statute in a municipal enforcement action for a zoning violation, despite the would-be movant's assertion of victimization.

Curious, though, that mass-media-Goliath defense against defamation and privacy lawsuits didn't get a mention in the court's main text. In a telling footnote, the court opined:

Although originally drafted with a particular purpose in mind—that is, the prevention of lawsuits used by developers to punish and dissuade those objecting to their projects in the permitting process—the anti-SLAPP statute's broadly drafted provisions, particularly its wide-ranging definition of petitioning activity, have led to a significant expansion of its application.... The ever-increasing complexity of the anti-SLAPP case law has also made resolution of these cases difficult and time consuming.... We recognize that this case law may require further reconsideration and simplification to ensure that the statutory purposes of the anti-SLAPP statute are accomplished and the orderly resolution of these cases is not disrupted.... We also note that other States have defined petitioning activity more narrowly and that bills have been filed in our Legislature to do the same....

I don't want to be an I-told-you-so, but.... 

Europe and the UK might ought take heed.

The UK invited public comment in a consultation in the spring as it ponders anti-SLAPP, and the European Commission is working out legislation now for the European Union.

In a March judgment, the European Court of Human Rights (ECtHR) recognized SLAPPs as a human rights problem. The court held that a regional Russian government had violated free speech rights with a civil defamation action against an online media outlet critical of officials. 

Of course, the Massachusetts and Maine cases should only aggravate the European court's worry, because it was a public authority that was the complainant in Russia. What if AG Healey were on a crusade against news outlets, using the deceptive practices law to persecute newspapers critical of the commonwealth government? (Is that how Exxon sees itself, victimized?) Would anti-SLAPP not be an apt defense?

The problem did not wholly escape the court's notice. The court struggled to distinguish an earlier Massachusetts case, Hanover, in which the applicability of anti-SLAPP in public enforcement simply had not been challenged when a town sued a union in a row over procurement. In a final footnote, the court wrote: "We note that the union in Hanover was not seeking to employ the anti-SLAPP statute to prevent local government enforcement of laws. As the issue was not raised in that case, and is not raised here, we need not decide whether any or all local government enforcement actions are beyond the scope of the anti-SLAPP statute."

So while the court lamented the burgeoning complexity of anti-SLAPP with one breath, it opened the door to more confusion with the next.

Hanover was characterized as an abuse-of-process suit, and therein lies a suggestion, I believe and have written before, of a better way to manage SLAPPs.

The Massachusetts case is Commonwealth v. Exxon Mobil, No. SJC-13211 (Mass. May 24, 2022). Justice Scott Kafker wrote the unanimous opinion. Track the case at the Climate Change Litigation Database.

The ECtHR case is OOO Memo v. Russia, No. 2840/10 (Eur. Ct. Hum. Rts. Mar. 15, 2022).

FOIA requesters need protection against retaliation; in egregious case, court allows First Amendment theory

Intersection of state highways 42 & 61 in Conyngham Town, Pa.
(2019 photo by Mr. Matté CC BY-SA 3.0)

A bizarre FOIA case decided by the Third Circuit suggests that use of an open records act in the public interest triggers constitutional protection against retaliation under the First Amendment.

A businessperson and landlord in Conyngham, Pennsylvania, John McGee used the state freedom of information act (FOIA), called the Right to Know Act, to investigate his suspicions of financial malfeasance in town government.  A town supervisor then sent to McGee, you read that correctly, a demand for private business information, purportedly issued in the name of the town and under the authority of the FOIA.

McGee asked the board of supervisors for an explanation, and they refused to give any.  In a lawsuit, McGee alleged violation of substantive due process rights and the First Amendment.  He alleged that he did not know that the town's demand was unlawful and unenforceable.

The district court dismissed both counts; the Third Circuit reversed and remanded on the First Amendment claim.  The court explained:

In order to prevail on a retaliation claim under the First Amendment, “a plaintiff must … [prove]: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp.... (3d Cir. 2006). There does not appear to be any dispute that McGee engaged in constitutionally protected speech, nor that there was evidence of a causal link between his speech and the Right-to-Know request [supervisor Linda] Tarlecki gave him.

Only the middle prong was at issue on appeal, and the court found sufficient evidence for McGee to fend off summary judgment.  The test for deterrence is objective, the Third Circuit emphasized, so it doesn't really matter whether McGee was deterred as a matter of fact.

What intrigues me about the case is the apparently non-controverted question of element (1).  The Third Circuit opinion is ambiguous on what serves so self-evidently as McGee's constitutionally protected conduct.  McGee previously had been critical, in public testimony, of the board of supervisors for how it managed the housing code, but that doesn't seem to be the impetus for retaliation here.  His FOIA request may be construed as a petition of government or as a precursor to further public criticism.  The court did not specify.

In the law of the United States, at the federal level and in most states, requesting access to information is a statutory privilege, not a constitutional right per se.  There is a strong argument that the distinction is immaterial to attachment of the First Amendment right to petition to a FOIA request.  But de facto, in my work in FOIA advocacy, retaliation against FOIA requesters is a real and serious risk.  When asked for counsel by persons contemplating use of FOIA to investigate government, I warn would-be requesters of the possibility of retaliation.

If the First Amendment affords protection against retaliation, it's not an easily won theory.  First, there are practical problems.  Finding an attorney willing to bring a First Amendment claim against government is neither easy nor cheap.  Civil rights litigation and First Amendment law are both complicated.  Attorneys who practice in civil rights prefer the familiar patterns of discrimination and harassment based on race or gender.  In small legal communities such as Arkansas's, attorneys are loath to sue sugar-daddy government.  The thin possibility of winning attorney fees, even with a multiplier, upon a convincing legal victory is not enough to incentivize counsel.

Second, legal problems loom on the merits.  Usually problematic is the third element, causation.  The conduct here in McGee is unusual in its blatant motive.  Ordinarily, when local officials deny zoning variances, liquor licenses, or other privileges to applicants who happen to be accountability mavens, the causal connection cannot be shown to a constitutionally satisfactory certainty.

Element (1) is often a problem, too, because would-be requesters are also often would-be whistleblowers.  Under the muddled constitutional jurisprudence of the rights of public employees, the First Amendment does not preclude being fired for blowing the whistle on malfeasance in one's government workplace, much less the act of filing a state FOIA request to the same end.

There's a cruel irony of inefficiency in our First Amendment jurisprudence in that public employees are least protected when they speak of what they know best.  The jurisprudence rather favors being a team player in government.  Defectors, however righteous, must seek protection in statute, where there might be none.

When I worked on FOIA advocacy issues in Arkansas, before I moved to Rhode Island in 2011, I aided Reps. Dan Greenberg and Andrea Lea with 2009 H.B. 1052, which amended the state whistleblower protection statute with express protection for the use of FOIA.  Opponents of the bill argued that it was unnecessary, because existing law protected state employees in communicating concerns to elected officials.  My experience suggested that an elected official carelessly chosen was as likely to burn a whistleblower as to facilitate accountability.

More aggressive protection of FOIA requesters should be the norm throughout the United States.  Retaliation should not have to be as overtly wrongful as in McGee to trigger protection, whether statutory or constitutional.

The case is McGee v. Township of Conyngham, No. 20-3229 (3d Cir. Sept. 23, 2021).  U.S. Circuit Judge Kent A. Jordan wrote the opinion of a unanimous panel that also comprised Judges Marjorie Rendell and David J. Porter.  HT @ Prof. Rob Steinbuch and Prof. Eugene Volokh (Volokh Conspiracy).

Extortion claim survives anti-SLAPP motion because defendants could not show petitioning connection

Haverhill, Mass., on the Merrimack River, 2008
(photo by Fletcher6 CC BY-SA 3.0)

Defendants could not raise an anti-SLAPP law against allegations of extortion, the Massachusetts Appeals court ruled before the Memorial Day weekend, because extortion did not relate plausibly to the defendants' constitutionally protected petitioning.

Plaintiffs Stem Haverhill and owner Caroline Pineau were applicants for zoning ordinance changes to permit a marijuana dispensary, since opened, in the downtown riverfront district of Haverhill, Massachusetts, a city 35 miles north of Boston, on the New Hampshire border.  Defendants Brad Brooks and Lloyd Jennings leased nearby residential and restaurant space and opposed the zoning changes.

Brooks and Jennings had had a scrap over property boundary with the previous owner of the Stem lot and had paid $30,000 to resolve the matter.  According to the complaint, Brooks and Jennings, apparently bitter over the former matter, demanded more than $30,000 from Pineau as the price of their acquiescence to zoning changes, no matter what the proposed use.

Stem and Pineau sued under the broad Massachusetts tort-and-consumer-protection statute, chapter 93A, as well as state civil rights law and common law defamation.  As often occurs in anti-SLAPP suits, both parties claimed the exercise of constitutional rights.  The plaintiffs were petitioning the government for zoning changes.  The defendants invoked anti-SLAPP upon the theory that the plaintiffs' civil charges of extortion were calculated to interfere with defendants' petition of government in opposition to the zoning changes.  (Read more about anti-SLAPP on this blog.)

The Massachusetts anti-SLAPP statute facilitates dismissal in favor of the defense by special motion upon the theory that litigation is being weaponized to chill the defendant's (or counter-defendant's) free exercise of the right to petition.  As construed by the Supreme Judicial Court, and quoted in part in the instant case, "a defendant seeking dismissal must show, at the threshold, that the claims against it 'are based solely on [its] exercise of its [constitutional] right to petition.'"

The extortion allegations did not fit the anti-SLAPP pattern, the court concluded, affirming the trial court on de novo review.  "Here, some of the defendants' statements to the Pineaus cannot reasonably be viewed as relating to the defendants' petitioning activities. As discussed, the defendants' focus was to obtain money from Pineau that the defendants knew Pineau did not owe to them."  Litigation in the Land Court could not produce a financial award, the court observed, thus undermining the defendants' position.  The court further reasoned:

Here the defendants did not merely oppose Pineau's proposed business, nor did they merely seek to negotiate their price.  Rather, the complaint describes a concerted and extended effort to coerce Pineau to pay, "or else"—complete with thinly veiled threats such as that Pineau "doesn't know who she is dealing with." The complaint thus adequately describes extortion—coercion by improper means that is designed to reap an economic reward. Such actions, in the business context, can be actionable under c[hapter] 93A, and given the facts alleged here, the suit is not based solely on petitioning activity as required by the anti-SLAPP cases.

Though the "solely" limitation is not found in the anti-SLAPP statute, the rule appropriately narrows the doctrine to its roots in protecting the right to petition.  Had the case proceeded in the Massachusetts anti-SLAPP process, the plaintiff would have been afforded an opportunity in rebuttal, also, to articulate a purpose apart from chilling the right to petition.  As the Appeals Court observed, "The Supreme Judicial Court has construed the statute several times, and has provided a framework, which has evolved over time, for analyzing whether an anti-SLAPP motion to dismiss should be allowed."

The case is Haverhill Stem LLC v. Jennings, No. 20-P-537 (Mass. App. Ct. May 26, 2021).  Justice John Englander authored the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Kinder.

Anti-SLAPP gone wild: Massachusetts tightens the reins

The anti-SLAPP cases kept coming from the Massachusetts appeals courts in May.  I posted previously on anti-SLAPP in the Massachusetts Supreme Judicial Court in February.  This posting describes three recent holdings, the middle of which substantially revised—and tightened—the anti-SLAPP qualification analysis.  The next two paragraphs recap some background on anti-SLAPP; skip right down to the cases if you like.  The Massachusetts anti-SLAPP statute is Mass. Gen. L. ch. 231, § 59H.

For a quick recap, “anti-SLAPP” refers to state statutes designed to forestall tort claims in “strategic lawsuits against public participation” (SLAPPs).  The prototypical SLAPP might be a land developer’s suit against environmental protestors for interference with the developer’s prospective economic relations.  The protestors are motivated by First Amendment right to speak and petition and are not acting wrongfully.  So, the logic goes, they should not be tied up in pricey and complex litigation having to assert the First Amendment as an affirmative defense.  Rather, they are entitled to a speedy dismissal.  In various forms and fashion across the states, anti-SLAPP statutes allow expedited process before the trial courts to dispense summarily with cases that ultimately would or should come out in defendants’ favor.

Furthermore for quick recap, I despise anti-SLAPP statutes.  They are yet another crutch for defense lawyers—complementing a broad array of defense privileges in common law and constitutional law—to cloak the perpetrators of defamation, privacy invasion, interference, and other torts in the false light (if you will) of constitutional holy writ.  Through unduly expedited process, anti-SLAPP deprives plaintiffs out of the gate of a fair chance to discover the damning evidence of defendants’ wrongful conduct—evidence often required by the aforementioned broad array of defenses, thus compounding the already ratcheted-up hurdles a plaintiff with meritorious cause must clear.

At ABA meetings, I have heard the defense lawyers of transnational mass media conglomerates speak of anti-SLAPP bills in the same tender timbre one employs to share photos of a newborn.  They are especially fond of anti-SLAPP laws that award attorneys’ fees to the prevailing defendant; imagine that Goliath bill arriving in David’s mailbox.  Such cooing should be evidence enough that the playing field has been unleveled.  And I was a defense lawyer, so I know of whom I speak.

That said, I would be foolish to assert that anti-SLAPP motions don’t often reach just results.  An unlevel playing field does not mean that the winning team is not the better.  I contend instead that anti-SLAPP gives a trial judge too much power to ballpark “right” and “wrong” in the absence of the fair evidentiary confrontation that our adversarial system requires.  These cases illustrate how the Massachusetts appellate courts are struggling to implement the state anti-SLAPP law fairly.

(1) The Case of the Ex-Spouse Who Won’t Let It Go

After what must have been an ugly divorce in the 1990s, Ms. St. Germain was left with a permanent protective order of no contact against her former husband, Mr. O’Gara.  In 2014, after receiving contact via post, St. Germain complained to police that O’Gara had violated the protective order.  Police arrested, charged, and then dismissed charges against O’Gara, who in turn sued St. Germain on various civil theories—breach of contract, abuse of process, malicious prosecution, tortious interference, and intentional infliction of emotional distress—for the police report that had precipitated his arrest.

Holding O’Gara’s civil suit “based entirely on [St. Germain’s] petitioning activity,” the court dismissed the civil suit upon St. Germain’s anti-SLAPP special motion, reversing the superior court.  The court reiterated that petitioning activity under the Massachusetts statute is to be construed broadly, “‘similar in purpose to the protections afforded public officials by the doctrine of governmental immunity’” (quoting precedent).  “Furthermore, § 59H covers petitioning activity regardless of whether it concerns a public or purely private matter.”

The statute first burdened defendant St. Germain, as special movant, with proving by preponderance that O’Gara’s lawsuit was based solely on her police report as petitioning activity, without other substantial basis.  Second, under the burden-shifting procedure of the statute, O’Gara would be compelled to prove by preponderance that St. Germain’s petition “‘(1) … was devoid of any reasonable factual support or any arguable basis in law and (2) … caused actual injury.’”

The trial judge had erred by skipping the first step of the inquiry and justifying discovery upon a “credible claim of injury caused by [St. Germain].”  Rather, first, St. Germain was correct in asserting that O’Gara’s suit concerned her police report solely as petitioning.  O’Gara had asserted that St. Germain was motivated by hostility, besides petitioning.  But the court concluded that whether or not she bore such motive was immaterial to the purely petitioning nature of the report.  Second, St. Germain was reasonable in believing her police report legally founded, despite the later dismissal of charges.  I.e., the police report was not a sham.

The case is O’Gara v. St. Germain, No. 15-P-1711 (Mass. App. Ct. May 11, 2017) (Justia).

(2) The Case of “‘It’s Too Late, Doctor Bob.  We’ve Lost Him’”

Four incidents of alleged abuse or neglect of patients in a unit of the Steward Carney Hospital in Boston resulted in a mass dismissal of unit staff, including nurses.  Discussing the employment shake-up publicly in email to hospital staff and in statements to The Boston Globe, with a state investigation still underway, hospital administrators were vague on particulars.  The state later blamed three incidents on only one mental health counselor, and the fourth incident on staff, the latter conclusion the subject of ongoing legal contest.  Plaintiff nurses sued the hospital for defamation, and the hospital responded with an anti-SLAPP special motion. 

The Supreme Judicial Court, per Justice Barbara Lenk on May 23, reached a mixed result and remanded, furthermore finding occasion to tighten the requirements for an anti-SLAPP motion to succeed. 

Again illustrating the broad construction of petitioning activity, on the first step of the anti-SLAPP test, the hospital successfully asserted that the nurses’ lawsuit concerned statements to the press solely as protected petitioning, because the statements were “‘made to influence, inform, or at the very least, reach governmental bodies—either directly or indirectly’” (quoting precedent).  “The key requirement of this definition of petitioning is the establishment of a plausible nexus between the statement and the governmental proceeding.”  The Court held that statements to the Globe passed muster as indirectly aimed at state investigators  However, email to hospital staff, intended only for internal circulation, did not pass the test.

Here the Court steered off the road.  Initially the Court was flummoxed: what to do with a split outcome between allegedly defamatory statements?  Recall that the defendant must show that plaintiff’s suit concerned “solely” defendant’s petitioning activity.  What happens when some statements are petitioning and some are not?  Perhaps the anti-SLAPP motion must fail, because the defendants’ activity was not, then, purely petitioning.  Or perhaps the petitioning activity alone, here the Globe statements, advance to the second step of the test, burden shifting for the plaintiff to prove sham.  If plaintiff cannot prove sham petitioning, defamation might be dismissed in part.  The design of the complaint cannot be dispositive, for plaintiffs could evade anti-SLAPP by parsing counts.

That issue, however, proved to be only the crest of a hill concealing the drop off of a cliff.  For then the Court plunged into angst over the very enterprise of the anti-SLAPP analysis.  If a defendant cannot prove that the lawsuit is about solely petitioning activity, can the lawsuit not be a SLAPP?  Inversely, if a defendant proves that the lawsuit is about solely petitioning activity, and the petitioning was not a sham, does it follow necessarily that the lawsuit should be dismissed as a SLAPP?

Suppose, the Court proffered (quoting Illinois precedent), that defendant “‘spread malicious lies about an individual while in the course of genuinely petitioning the government for a favorable result.’”  The defendant passes muster under step one (if the statements are not parsed).  And the plaintiff cannot show sham under step two.  Case dismissed.  Yet “[i]f a plaintiff's complaint genuinely seeks redress for damages from defamation or other intentional torts and, thus, does not constitute a SLAPP, it is irrelevant whether the defendant[’s] actions were genuinely aimed at procuring favorable government action, result, or outcome.”

Thus the Court exposed a basic constitutional dilemma in anti-SLAPP: The plaintiff has a right to petition, too; plaintiff’s lawsuit is a constitutionally protected petition to the judiciary.  I would add, ignorance of this fact is why anti-SLAPP statutes, if not properly reined in by the courts, unfairly overcorrect in defendants’ favor.  One can argue that this operation of anti-SLAPP is a prophylactic protection for the petitioning rights of the defendant, thereby demanding that we tolerate dismissal of some meritorious causes of action—like the problematic “actual malice” rule of public-figure defamation.  But that argument fails to explain why the defendant’s petition right is superior to the plaintiff’s.

To solve this problem and mitigate its constitutional dilemma, the Supreme Judicial Court added a second way for the plaintiff to prove its way out of anti-SLAPP dismissal in step two of the test.  Recall that plaintiff bore the burden of prove sham petitioning by the defendant (and actual injury).  Well now the plaintiff may prove sham petitioning or plaintiff’s “suit was not ‘brought primarily to chill’ the [defendant]’s legitimate exercise of its right to petition.”  Thus, recalling the “malicious lies” example above, suppose furthermore that the plaintiff cared not one way or the other about the matter of defendant’s petition to the government.  Plaintiff rather was concerned with the malicious lies, however the matter was decided.  “A necessary but not sufficient factor in this analysis will be whether the [plaintiff]’s claim at issue is ‘colorable or … worthy of being presented to and considered by the court,’ … i.e., whether it ‘offers some reasonable possibility’ of a decision in the party’s favor.” 

On remand, then, the nurses would be able to avoid anti-SLAPP dismissal on the Globe statements, as well as the email, by showing the Globe statements a sham petition—unlikely—or by showing “that their defamation claim, viewed as a whole, is nonetheless not a ‘SLAPP’ suit.”  If they cannot meet their burden either way, then the hospital will be entitled to dismissal as to the Globe statements, the case over the email persisting.

The change is a dramatic one.  So modifying the plaintiff’s burden on step two of the test forces the trial court to confront head on the undisguised, central question of the anti-SLAPP inquiry.  Notwithstanding precedents that eschew focus on a plaintiff’s motives, the analysis inevitably steers the court back to ask whether the plaintiff is aggrieved by the hurtfulness of what the defendant did, or by the defendant’s aim to influence government.  For my money, one might as well ask that question at the start and be done with it.

The case is Blanchard v. Steward Carney Hospital, No. SJC-12141 (Mass. May 23, 2017) (Justia).

(3) The Case of a Beautiful Day for a Neighbor

Justice Lenk issued a second opinion on anti-SLAPP for the Supreme Judicial Court the same day, May 23.  The case better fits the prototype anti-SLAPP mold in being a dispute over property development.  The Court remanded for application of its new Blanchard standard (case (2), immediately above).

In 2011, the plaintiff purchased a five-story brick building, 477 Harrison Avenue, Boston, to redevelop it for residential use.  Defendant JACE Boston owned neighboring 1234 Washington Street, which shared a wall with the Harrison property.  Defendant intended at some point to redevelop its property, too, and a competition ensued.  The parties disputed redevelopment plans in years of administrative process and litigation.  Finally in 2014, plaintiff sued defendant in superior court for abuse of process and for violation of Mass. Gen. L. ch. 93A, § 11, a broad state prohibition on unfair competition.

Upon defendant’s anti-SLAPP motion, the trial court determined that the defendant could not meet its step-one burden to show that the lawsuit was about solely petitioning activity, without other substantial basis.  The Court rather found that the abuse of process claim passed muster under step one, concerning solely defendant’s petitioning.  On step two, the plaintiff could not show that defendant’s petitioning, with respect to the abuse of process claim, was entirely a sham, that is devoid of factual and legal basis.  Nevertheless, under the newly announced Blanchard standard, the plaintiff on remand must be afforded the opportunity to resist dismissal by proving that its lawsuit is not a SLAPP—that is, “the motion judge may conclude with fair assurance,” “‘that [plaintiff’s] primary motivating goal in bringing its claim, viewed in its entirety, was “not to interfere with and burden defendants” … petition rights, but to seek damages for the personal harm to [the plaintiff] from [the] defendant[’s] alleged … [legally transgressive] acts.’”

Faced with “the novel issue as to whether all or only some of a [defendant’s] petitioning activities must be shown to be illegitimate in order to defeat a special motion to dismiss,” the Court decided that the plaintiff must “show that the entirety of its abuse of process claim is not a ‘SLAPP’ suit” to resist dismissal in full.  Otherwise, dismissal (and fees) are granted only for the “portion of the abuse of process claim arising out of the defendant[’s] protected petitioning activities.” 

The case is 477 Harrison Avenue v. JACE Boston, LLC, No. SJC-12150 (Mass. May 23, 2017) (Justia).

[UPDATE, Nov. 11, 2019: The SJC today issued another installment in 477 Harrison saga.  Remanding, the Court determined that abutters' counterclaims were retaliatory, not substantive, so should not be sustained against the developer.  I'll say again, anti-SLAPP was not designed to protect developers in land feuds, much less to generate multiple interlocutory dispositions, and this case speaks directly to the pathology of anti-SLAPP.]

Anti-SLAPP helps free speech vanquish another foe! But is that always how it works?

The Massachusetts Supreme Judicial Court (SJC) has rejected a defamation claim connected with the Deepwater Horizon oil spill on anti-SLAPP grounds.  The case is Cardno ChemRisk v. Foytlin, No. SJC-12082 (Feb. 14, 2017).

Environmentalists Cherri Foytlin and Karen Savage authored an op-ed for a Huffington Post blog in which they accused scientific consulting firm Cardno ChemRisk, LLC, of “a long, and on at least one occasion fraudulent, history of defending big polluters using questionable ethics to help their clients avoid legal responsibility for their actions.”  With respect to “fraud[],” the writers had alleged that ChemRisk accepted payment “to discredit research” that would have been probative of liability in the pollution case that became the basis of the movie, Erin Brockovich. 

“Anti-SLAPP” motions, allowed in 28 states and D.C. according to the Digital Media Law Project, are pretrial, usually dispositive motions that allow defendants to have the court take an early look at the merits of a tort lawsuit, with an eye to dismissal.  A “SLAPP” is a “strategic lawsuit against public participation” and refers to a lawsuit, often but not necessarily defamation, that is brought more for the purpose of miring an opponent in the burdensome transaction of litigation than for the purpose of redressing wrongful injury.

A darling of the media defense bar, anti-SLAPP is heralded as a contemporary savior of the right to petition and protest.  Some—me included—are a good deal more skeptical, finding that anti-SLAPP is often just one more hammer in the well-heeled, corporate-defense-bar toolbox to pulverize a plaintiff who might have a legitimate grievance but needs discovery to prove it—and furthermore a disincentive to media defendants to mediate disputes or make reasonable settlement offers.  In fact, media defendant victorious on anti-SLAPP motions often are entitled to have their attorney fees paid by the plaintiff, a remarkable departure from “the American rule” norm in U.S. litigation.

The terms of anti-SLAPP statutes vary considerably with state law.  The Massachusetts anti-SLAPP law requires that the defendant have been exercising its “right to petition,” an allusion to the First Amendment.  But the scope of petitioning activity contemplated by the statute is much more permissive than the First Amendment doctrine.  The statute embraces “any statement reasonably likely to enlist public participation in an effort to effect” governmental “review of an issue.”

As the court described the Foytlin blog post, it was “part of the defendants’ ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and it closes with an implicit call for its readers to take action.”  In particular, ChemRisk complained on appeal that the bloggers were not advocating on their own behalf.  The SJC, per Justice Lenk, found the statute not so constrained.

This might have been the just outcome in this litigation.  I don’t pretend to know better.  The court wrote an excellent explication of the Massachusetts anti-SLAPP statute and how it works procedurally, as well as its policy purpose.  The court characterized the legislature’s purpose as “primarily to protect ‘citizens of modest means’ who speak out against larger, more powerful entities.”  According to a footnote, “Foytlin is a mother of six supporting herself with modest monthly stipends; she lives in Louisiana less than fifty miles from the affected portion of the Gulf Coast shore.”  I suppose ChemRisk is a brutal, evil company, like Spiga Biotech in Syfy TV’s Incorporated.  The opinion doesn’t say. 

I have no warm and fuzzy feelings for ChemRisk, nor for BP and its partners in oil drilling.  But before we sing another round of hymns in knee-jerk praise of anti-SLAPP legislation, let’s at least acknowledge that the statute nowhere turns on the relative social power of the parties, or on their wealth, or on their parental or corporate status.

Media Goliaths already have a thousand and one ways to win a defamation lawsuit, even upon publication of falsity and refusal to update, investigate, or correct.  Sometimes plaintiffs are just Davids whose lives have been up-ended by malicious allegations calculated to advance an agenda regardless of the collateral damage.  I know what I’m talking about.  Cutting off a plaintiff at the knees and chilling the right to petition of truly aggrieved individuals is hardly an effective response to the very real problem of litigation transaction costs.  Let’s not be too quick to congratulate ourselves on another win for free speech.