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Posts tagged ‘anti-SLAPP’

Free speech victory for enviro bloggers

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February 14, 2017:-Today the highest court in Massachusetts marked St. Valentine’s Day  by demonstrating its love for free speech.

The question was this: If bloggers accuse a scientific consulting company of fraud, questionable ethics, and intentionally manipulating findings, may the company sue the bloggers for defamation? The answer: No, not in Massachusetts, at least not if the company is providing expert testimony in high-profile litigation.

In a case connected to the Deepwater Horizon explosion and oil spill, the Supreme Judicial Court (SJC) considered the defamation complaint one of BP’s experts, Chemrisk, had brought against two environmental activists. The activists wrote that Chemrisk had engaged in fraud and “intentionally manipulated findings.” Relying on the anti-SLAPP statute, they had asked a lower court to dismiss Chemrisk’s lawsuit. The  lower court denied the motion, but the SJC essentially overturned that denial and, to boot, awarded the activists their costs and legal fees. To read the SJC decision, click here.

The anti-SLAPP statute protects defendants not only in directly petitioning governmental bodies, but also in making “any statement reasonably likely to enlist public participation” in that petitioning effort effort. According to the SJC, the activists’ blog post was “part of [their] ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and closes with an implicit call for its readers to take action.”

Today’s decision represents a very welcome victory for freedom of speech.

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Peter Vickery, Esq.

Petition by press release? Protected.

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February 24, 2016:- The anti-SLAPP law (M.G.L. c. 231, §59H) allows defendants to file a special motion to dismiss if they are being sued based on their petitioning activities. The statute defines the term “petitioning”as including “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.”  Today the Appeals Court issued a decision that expands the scope of the anti-SLAPP law and contracts the reach of defamation law.

The case is Blanchard v. Steward Carney Hospital, Inc., and others.  The plaintiff sued for defamation over statements that one of the defendants — William Walczak, the president of a hospital being investigated by several regulatory agencies — made to the Boston Globe. The defendant filed an anti-SLAPP motion arguing that his comments constituted “petitioning activity.” The Appeals Court agreed, and dismissed the defamation claim regarding the statements to the newspaper.  

What makes the case noteworthy is one of the two reasons the Court gave for its decision (to keep this post short I won’t go into the other one). The Court held that in the context of the public pressure on the Department of Mental Health (DMH) to close a unit in the hospital,

Walczak’s comments… qualify as protected activity because the investigation was ongoing, and it is clear that DMH, which was regularly on site at the hospital, would be paying attention, or at least would have access to the [Globe] articles. If Walczak did not respond, there would have been a serious risk that the situation would be reported in a manner that did not take into account the [the hospital’s] perspective.

This is not an altogether novel interpretation of the anti-SLAPP law. In 2005 the Appeals Court held that “petitioning activity” included statements to the media where the speaker, the widow of a firefighter, was lobbying the Legislature to pass special legislation granting her survivor’s benefits. Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005). Her anti-SLAPP motion to dismiss a defamation claim succeeded because her public statements were “sufficiently tied to and in advancement of her petition.”

The rationale in Wynne v. Creigle seemed to be that the defendant was lobbying the Legislature (a petitioning activity) via the media. Legislators, after all, are supposed to be democratically accountable and responsive to the voters.

Today’s decision goes further. It means that the anti-SLAPP law now insulates from suit statements a speaker makes to the media where the initial target audience is the public but the ultimate audience is an unelected government agency, on the apparent rationale that the agency is amenable to public pressure. In short, this case places a new hurdle in the way of actions for defamation where the speaker who gave the media an allegedly defamatory statement (e.g. by issuing a press release) was using the media as a conduit to a regulatory agency.

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Peter Vickery, Esq.

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