Citizen Journalists and the anti-SLAPP Statute

19Feb11

Since New York Times v. Sullivan set the enduring standard by which the law of defamation is applied to the work of professional journalists, news dissemination has undergone a sea change. The Times itself, long a citadel of the print news business, bleeds red ink while hundreds of small aggregator websites offer free access to their on-line content. These local and regional websites also deliver the citizenry local news, often supplied by bloggers or “citizen journalists,” individuals who usually lack the professional training of a news reporter and are prone to injecting a surfeit of their personal slant. This is especially the case when today’s blogger speaks out on matters of peculiarly local concern.

The late Speaker of the House, Thomas P. “Tip” O’Neill coined the expression “all politics is local,” and especially here in Massachusetts, we tend to treat it as a contact sport. Mr. Dooley’s famous averment that “politics ain’t bean bag” is truer in 2011 than it was in 1899. It was only a matter of time before an aggrieved figure (public or private) involved in local controversy ran up against a blogger’s seemingly impenetrable shield of the First Amendment and its companion sword, the Massachusetts anti-SLAPP statute.

The first skirmish arose in the 2003 case of MacDonald v. Paton. An Athol selectman took offense when, in the heat of a re-election campaign, a local website characterized him as a “Nazi.”  The website, “Athonics Homepage,” reported on local affairs in the town of Athol and surrounding communities. It included The First Dictionary of Athonics, an interactive feature in which Athol citizens contributed word definitions, often satirical, via email. After the selectman became involved in a controversy over the siting of a police station, one citizen submitted a definition for “nazi” that was aimed at him:

“nazi-not see 1. A political affiliation whose platform espouses military dictatorship, racial cleansing, eugenics and intolerance. 2. In Athol, a term sometimes used to describe certain selectmen who wish to ignore most issues except for those which place them firmly in bed with chiefs of police. (see Old Macdonald had a gun, E-I-E-I-Oh shit).”

Vanquished by the voters, the selectman sued the website owner, who sought the protection of the “anti-SLAPP” statute, which allows for quick dismissal of lawsuits aimed at those who exercise their “right of petition.” A successful motion will end the lawsuit at its outset, with attorneys fees paid by the suer.

The Appeals Court decided that this colorful commentary met the statutory definition of “protected petitioning activity,” based upon the owner’s description of her site as “a forum for speech by citizens about issues of public and political concern. … much of the content was contributed by others who provided submissions … by e-mail. In that sense, the Web site served as a technological version of a meeting of citizens on the Town Green, a space where concerned individuals could come together to share information, express political opinions, and rally on town issues of concern to the community.”

Over the next several years, both of the appellate courts rendered a flurry of decisions in anti-SLAPP cases, but none of them involved circumstances that related to the defendant’s own publication of commentary, in print or on-line. One of those decisions, however, caused mischief in the free speech arena when one party in business litigation uttered uncomplimentary things about its competitor to a news reporter.

Global NAPS, Inc. v. Verizon New England, Inc. arose out of a dispute that had culminated in a series of arbitration rulings that were appealed by Global NAPS to the Superior Court. When a Boston Globe reporter sought comment on the law suit from Verizon’s head of regulatory affairs, he stated that “the DTE ruling shut down ‘a scam’ [that] Global NAPs very cleverly developed in the late 1990s.”

Verizon parried the thrust of Global’s ensuing trade libel complaint with an anti-SLAPP motion to dismiss, arguing that the comments were clearly made “in connection with a matter under review by the DTE and the courts,” and in that assertion they were, quite literally, correct. But the Appeals Court, having previously upheld Ms. Paton’s right to publish a whimsical definition of nazi to criticize an elected official, rejected what it called Verizon’s “broad reading” of the statutory phrase “in connection with.” In order for statements to be “in connection with an issue under consideration or review by a legislative, executive, or judicial body,” it said, it must be “made to influence, inform, or at the very least, reach governmental bodies-either directly or indirectly.” There must be a “purposive” element to the speech at issue. Otherwise, public utterances are merely “tangential statements intended, at most, to influence public opinion in a general way unrelated to government involvement.”

But in an earlier case on similar facts, the Court sided with the speaker. In Wynn v. Creigle,  the defendant’s tangential statements to the local newspaper were held to be protected simply because they were “mere repetitions” of statements she had made in the context of a departmental investigation, and so were “sufficiently tied to and in advancement of” her petition. This is the first (and only) indication that the Court would examine the content of the speech in making a judgment on its “petitioning” quality.

Remarkably, in spite of the explosion of the “blogosphere” during the decade and the corresponding degeneration of political discourse, there is yet no further reported appellate decision after MacDonald v. Paton that addresses blogger or citizen journalist commentary specifically.

However, two Supreme Judicial Court decisions during the past two years have added support to the deference afforded the website commentary in MacDonald.

First, in North American Expositions v. Corcoran, the Court reversed the Appeals Court on an unrelated issue, but provided this endorsement of the MacDonald decision:

Statements made outside any formal governmental proceedings have often been considered petitioning activity. See, e.g., … MacDonald v. Paton, 57 Mass App. Ct. 290, 293-294, 782 N.E.2d 1089 (2003) (Web site hosted by defendant that referred to town selectman as “Gestapo agent” was public forum and therefore protected petitioning activity, because it commented on local affairs in community, and allowed users to submit comments electronically). The MacDonald court concluded that the defendant’s Web site was a “technological version of a meeting of citizens on the Town Green, a space where concerned individuals could come together to share information, express political opinions, and rally on town issues of concern to the community.” MacDonald v. Paton, supra at 295.

Taken literally, the Court suggests that all statements made in an on-line forum that allows public comment on local affairs are protected petitioning activity. The presumption appears to be that the speaker’s use of such a public forum, by itself, provides the “potential or intent” for the commentary to “to influence, inform, or at the very least, reach governmental bodies-either directly or indirectly.”

In view of the legislative history of the anti-SLAPP statute, one could argue that the courts’ reading of “right of petition” to include such indirect statements as were protected in MacDonald was unusually expansive and conflates the “right of petition” with the “right of free speech,” a phrase that was excised from the legislation prior to its eventual passage. In light of the Appeals Court’s reading, it is difficult to discern a distinction between the two.

More recently, the Court in Fustolo v. Hollander addressed news articles written in a small community newspaper that reported on the controversies of a local developer. The reporter’s claim that her articles constituted petitioning activity was rejected by the Court because she was not speaking on her own behalf – or expressing her own grievance:

… the salient and dispositive point is that, as was true of the defendants’ testimony in both Kobrin and Fisher, Hollander’s articles did not contain statements seeking to redress a grievance or to petition for relief of her own.

The Court confined its examination to Hollander’s deliberately objective approach in writing the articles, and to her claim that she was writing on behalf of the neighborhood association, not herself. It did not discuss how the writing of a news article constitutes seeking redress of a grievance or petitioning for relief.

In any event, the Fustolo court once again cited MacDonald’s holding that statements made in the “technological version of a meeting of citizens on the Town Green” are petitioning activity deserving the statute’s protection.

Finally, the Court reiterated its prior holdings on the subject of commercial motive when it held that Hollander’s modest remuneration was irrelevant to their holding. Earlier in North American Expositions, the Court affirmed that “the fact that the speech involves a commercial motive does not mean it is not petitioning.”  It repeated this invocation in Fustolo:

We disagree that the compensation Hollander received disqualifies her articles as protected petitioning activity. … Our analysis would not change if Hollander had written the same articles, pursuant to the same instructions from the publisher, as a volunteer reporter.

Based upon the Supreme Judicial Court’s repeated endorsement of the MacDonald holding, and its reiteration of the irrelevance of commercial motivation, one is compelled to conclude that in Massachusetts, bloggers, whether paid or unpaid, who publish commentary on matters of public concern in a website platform that enables public comment, are engaged in protected petitioning activity and are therefore protected by the anti-SLAPP statute. Once they establish that their statements were protected, the aggrieved plaintiff must leap the daunting hurdle of showing that the statements are “devoid of any reasonable factual support or any arguable basis in law” and have suffered actual injury.

Left unanswered is how the courts are to determine whether the speech expresses the speaker’s own grievance. Must the matter at issue affect the speaker in some way special or different from the general public? Is all that is necessary that the words are his own opinion and that they address a matter of public concern? If the commentary at issue in MacDonald is to provide any guidance, then anyone may express his personal opinion of any issue of public concern, so long as he does it on a site where public comment is enabled.

Let the flame wars begin!

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3 Responses to “Citizen Journalists and the anti-SLAPP Statute”

  1. 1 Robb

    So any blogger, or comment to a blog, can say anything he wants about anybody because it’s in a public forum that comments on public issues?

  2. Anything he wants that is not devoid of any reasonable basis in fact or law – yeah.

    That said, I seem to be having a difficult time getting a trial court judge to understand this.

  3. How well I remember Professor Friedenthal’s blackboard diagram of the relative importance of trial courts and appellate courts, designed to correct misunderstandings developed by reading nothing but appellate opinions. First year law student imagines huge appellate court and tiny trial court–practicing lawyer sees huge trial court and tiny appellate court.


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