Note: This page covers information specific to Massachusetts. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use Massachusetts' anti-SLAPP statute, found at M.G.L. c. 231, § 59H, to counter a SLAPP suit filed against you, at least under some circumstances. The statute allows you to file a special motion to dismiss a complaint filed against you based on your "exercise of [your] right of petition under the constitution of the United States or of the commonwealth." The statute, by its terms, does not apply to speech activity that is not connected to petitioning the government, but Massachusetts courts have interpreted petitioning activity to include some online publishing activities. If a court grants a motion to dismiss under the anti-SLAPP statute, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.
Activities Covered By The Massachusetts Anti-SLAPP Statute
To challenge a lawsuit as a SLAPP in Massachusetts, you need to show that the plaintiff is suing you for "exercise of [your] right of petition under the constitution of the United States or of the commonwealth." M.G.L. c. 231, § 59H. The statute defines "a party’s exercise of its right of petition” to include a written or oral statement that is:
- "made before or submitted to" a government body;
- "made in connection with an issue under consideration or review" by a government body;
- "likely to encourage consideration or review of an issue" by a government body;
- "likely to enlist public participation in an effort to effect such consideration" by a government body; or
- "any other statement falling within constitutional protection of the right to petition government."
To make use of Massachusetts' anti-SLAPP motion, you will need to show that your speech activity fits into one of these categories. You will also need to prove that your exercise of the right of petition was the the sole cause of the plaintiff's lawsuit against you. If the plaintiff's lawsuit involves other issues, such as contractual obligations, you likely will not succeed on an anti-SLAPP motion. See Duracraft Corp. v. Holmes Products Corp., 691 N.E.2d 935, 942 (Mass. 1998).
Be aware that the statute does not protect "free speech" in the abstract, but only statements that fit within the five categories outlined above. Nonetheless, a good deal of online speech could fit into these categories, especially if aimed at influencing government policy or building support for a campaign to influence government policy.
However, an important Massachusetts Supreme Judicial Court case suggests that reporters who publish objective, factual news accounts won't qualify for the protections of the anti-SLAPP law, even if those accounts relate to matters and issues under review by government bodies and are aimed at enlisting public participation around those issues. See Fustolo v. Hollander, SJC-10485 (Mass. Feb. 1, 2010). In Fustolo, a real estate developer sued a reporter for a community newspaper for defamation over articles reporting on his properties and community opposition to his development plans. The complaint alleged that the articles caused "[w]idespread opposition . . . in connection with [his] development plans and variance petition" and "[a]s a direct and proximate result, [h]e was compelled to withdraw the application for variances prior to a hearing scheduled to take place before the Boston Board of Appeal on July 25, 2006.
Despite this connection with government scrutiny of the plaintiff's development plans, the Massachusetts SJC held that the articles did not qualify as "petitioning activity" on the reporter's "own behalf." Among other factors, the court noted that the articles in question were objective and did not reflect the reporter's personal opinions. It also determined that the reporter's subjective personal interest in the development issues she wrote about was not relevant to determining whether the articles themselves were petitioning activity. The court noted, however, that merely receiving compensation for her work did not deprive the reporter of the protections of the Massachusetts anti-SLAPP law.
Another potentially important case for website operators is MacDonald v. Paton, 782 N.E.2d 1089 (Mass. App. Ct. 2003). In this case, Elsa Paton operated a website that reported on local affairs in Athol, Massachusetts and the surrounding community. The site functioned as an interactive public forum on issues relating to Athol town governance, including education funding and municipal use of tax dollars. It included information on education reform, a citizen letters section, cartoons, quotes, a link inviting public participation by email, and satirical articles. Mark MacDonald, a former Athol selectman, sued Paton and others after a local newspaper published an article referring to him as a "Gestapo agent," and Paton published a "dictionary entry" for the term "Nazi" that referenced MacDonald. A Massachusetts appeals court held that Paton's publication of the statement was "petitioning activity" within the meaning of the anti-SLAPP statue because "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."
The Supreme Judicial Court's decision in Fustolo v. Hollander, discussed above, casts substantial doubt on the continued validity of MacDonald v. Paton, at least to the extent it suggested that providing a forum for others to speak could be "petitioning activity" on one's "own behalf" under the Massachusetts anti-SLAPP law.
If you are sued in federal court in Massachusetts, you might not be able to invoke the anti-SLAPP statute. Some federal courts in Massachusetts have held that the anti-SLAPP statute is a procedural rule that is inapplicable in federal court. See, e.g., Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312, 316 (D. Mass. 2003). Other courts might disagree, however.
How To Use The Massachusetts Anti-SLAPP Statute
The Massachusetts anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you for exercise of your right of petition.
If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to dismiss under the anti-SLAPP statute within sixty days of being served with the complaint. A court may allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.
One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. When you file a special motion to dismiss, the court must hear and rule on the motion "as expeditiously as possible." M.G.L. c. 231, § 59H. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.
In ruling on a motion to dismiss, a court will first consider whether you have established that the lawsuit arises solely out of your right to petition (defined above). Assuming you can show this, the court will then require the plaintiff to introduce evidence showing that the "exercise of [your] right to petition was devoid of any reasonable factual support or any arguable basis in law" and that your acts caused actual injury. M.G.L. c. 231, § 59H. If the plaintiff cannot show this, the court must grant your motion to dismiss. On the other hand, if the plaintiff can make this showing, the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.
What Happens If You Win A Motion To Dismiss
If you prevail on a motion to dismiss under the Massachusetts anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. M.G.L. c. 231, § 59H.
If you succeed in fending off a SLAPP in Massachusetts, you may be able to bring a claim of malicious prosecution against the SLAPP filer. While Massachusetts does not explicitly recognize a "SLAPPback" claim, the elements of these claims are similar. You should consult an attorney to see whether such a claim may be viable in your case.
If you file a special motion to dismiss under Massachusetts' anti-SLAPP law and the court denies the motion, you have an immediate right to appeal the denial. See Fabre v. Walton, 436 Mass. 517 (2002).