Reality SLAPP: Blogging Is Protected Free Speech

by George Georgountzos

For nearly two decades, Massachusetts law has protected individuals who exercise their First Amendment rights to petition from litigation meant to harass and discourage them from such activity. Over the years, Strategic Litigation Against Public Participation (or “SLAPP”) jurisprudence has blossomed, affording protection to individuals who make public statements from lawsuits by well-funded business adversaries who seek to stop such activity. “The typical mischief that [Mass. Gen. L. c. 231, §59H, the Anti-SLAPP statute] intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects.” Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 161 (1998). The penalties of violating the Anti-SLAPP law are severe: a case may be dismissed and the plaintiff becomes liable for the defendant’s legal fees.

A typical fact pattern is the following: An individual seeks to oppose a large development project and writes letters to the Board of Selectmen or City Council, speaks out against the project at the local zoning board, neighborhood event, Town Meeting, or writes an op-ed piece in the local paper seeking to have the local government deny the permit. The builder brings a suit against that individual alleging a claim such as defamation or interference with advantageous business relations. The suit may even be unrelated to the project; perhaps a trespass or tort action is filed. In defense, the defendant brings a Special Motion to Dismiss under the Anti-SLAPP statute and makes a showing that the plaintiff’s suit is based solely on the defendant’s petitioning activity. The court will allow the Motion to Dismiss unless the plaintiff can show that (1) the defendant’s petitioning lacked any factual support or basis in law and (2) the defendant’s petitioning caused the plaintiff actual injury.

Last month, the Massachusetts Supreme Judicial Court expanded the scope of Anti-SLAPP protections to bloggers. In Cardno ChemRisk LLC v. Foytlin, 496 Mass. 479 (2017), the petitioners were not individuals who sought redress before a local planning board or board of health, but environmental activists who were critical of an environmental consulting firm’s assessment of the toxic effect resulting from the oil spill in the Gulf of Mexico. The environmentalists wrote blogs on public web sites sites. The consulting firm brought a defamation action against the bloggers, who filed an Anti-SLAPP Special Motion to Dismiss. The Superior Court denied the bloggers’ motion on the basis that they were not petitioning for their own interests, but for a public purpose. The SJC reversed, stating that blogging for a public purpose is exactly what the Anti-SLAPP statute seeks to protect. The court held that petitioning in such a forum for the public good satisfies the letter of the SLAPP statute and that the petitioners were exercising their constitutional right to free speech.

Clients who face public criticism on web posts such as Facebook, Yelp.com, Angieslist.com, or other public forums should formulate strategies prior to filing defamation, injunctive relief, or other actions to anticipate Special Motions to Dismiss under Anti-SLAPP and be certain they will be able to overcome the severe penalties of the statute by satisfying the two elements in defense against such claims. If unable to show that a blogger lacked factual support or a reasonable legal basis, and there is no proof of economic harm, the risks of bringing an action against the blogger may be too high to justify.