Anti-SLAPP protection

Mass. Gen. Laws Ann. ch. 231, § 59H allows for a special motion to dismiss.

Law summary

Massachusetts’s anti-SLAPP statute focuses on the right to petition. It provides a special motion to dismiss for parties who establish they are facing legal action as a result of their exercise of their right to petition. The motion can be filed within 60 days of the complaint or later at the court’s discretion.

To succeed in using the anti-SLAPP statute, the defendant must establish that the claim against them is based solely on their protected petitioning activity. Once the defendant files a motion to dismiss under the anti-SLAPP statute, the burden of proof shifts to the party that filed the lawsuit. That party must show, “by a preponderance of the evidence,” that the petitioning activity in question did not have reasonable factual or legal support and had caused actual injury.

The statute identifies examples of protected expression, which include written or oral statements made before a governmental body or governmental proceeding, as well as statements made in connection with an issue under their consideration or review or an issue “reasonably likely to encourage consideration or review.” The statute also protects statements “reasonably likely to enlist public participation” or those made under constitutional protection of the “right to petition government.”

Legal actions

Massachusetts’ anti-SLAPP law includes four features that help protect publishers from meritless lawsuits:

• Special motion to dismiss: A defendant can file a motion to throw out the lawsuit if it qualifies as a SLAPP.
• Expedited legal process: The law requires the court to advance a motion under the statute so it can be heard and determined “as expeditiously as possible.”
• Stay of discovery: A motion filed under the Massachusetts anti-SLAPP law halts discovery until the order is ruled on. However, the court can order specified discovery to be conducted prior to a ruling “for good cause shown.”
• Attorney fees: If the motion is granted, a defendant is entitled to costs and reasonable attorney fees.

Helpful cases

These examples demonstrate how Massachusetts courts have interpreted the anti-SLAPP statute, including its application to defamation cases.

Fustolo v. Hollander (2010)

The defamation lawsuit is based on five articles Fredda Hollander wrote and submitted to Regional Review, a community newspaper. The articles mentioned Steven C. Fustolo, an accountant and real estate developer, and the properties he owned. Using the anti-SLAPP statute, Hollander argued that the suit was solely based on the statute’s protected petitioning activity. She argued the articles “implicated and gave expression” to her personal interests and that her reporting “played an essential role in facilitating the petitioning activity” of a neighborhood organization and several other community members. Her motion was denied. Although Hollander had long been involved in community activism around local zoning and development issues, the judge concluded that Hollander wrote the contested articles in her capacity as a reporter and not as a citizen. The decision was affirmed by the commonwealth’s highest court. Hollander’s claim that a journalist’s role as a “messenger, giving voice to and providing space for the petitioning activity of those groups and their members” failed. In its opinion, the court stated that “there is nothing about the role or function of a staff reporter of an independent newspaper that by its nature renders the reporter a representative or agent of every, or indeed any, community organization that the reporter may cover.” The opinion also focuses on the idea of objectivity in journalism, in which a journalist would deny association with a particular viewpoint. Finally, it rejected Hollander’s concern that this case may risk imposing a chilling effect on the press by excluding her from anti-SLAPP protections.

Cardno Chemrisk, LLC. v. Cherri Foytlin (2017)

Cardno Chemrisk, a scientific consulting firm, was hired by BP to assess the effects of a catastrophic oil spill on cleanup workers. A few years later, two environmental advocates published an article in the Huffington Post that criticized Chemrisk, claiming the firm had a long “history of defending big polluters using questionable ethics to help their clients avoid legal responsibility for their actions.” After the Huffington Post declined to retract the article, Chemrisk sued for defamation. A judge denied the defendant’s motion under the Massachusetts anti-SLAPP law, concluding the article “did not concern or seek to advance the defendants’ own interests, but rather those of the cleanup workers,” and therefore, the defendants failed to show the suit was based on protected petitioning activity under the statute.The case then went to the commonwealth’s highest court, which reversed and remanded the decision. It concluded that the article was “reasonably likely to enlist public participation,” and therefore was an exercise of the defendant’s right to petition. Additionally, since the article was written as BP was fighting litigation regarding their liability for the spill, it also constituted a “statement made in connection with an issue under … review by a … judicial body.” Finally, in its opinion, the court noted that nothing in history or case law has suggested the protected activity protected under the anti-SLAPP statute applies only to those “seeking redress of purely personal grievances.”

Bristol Asphalt v. Rochester Bituminous Products (2024)

This case reexamined the framework that the court uses when interpreting anti-SLAPP suits. Starting in 2010, Bristol Asphalt claimed to face frivolous “administrative and legal challenges” from competitor Rochester Bituminous Products, when it sought to obtain regulatory approval for a proposed asphalt plant. Bristol filed an amended complaint against defendants on three counts for obstructing its business. In response, defendants filed a motion under the commonwealth’s anti-SLAPP statute. Although the judge agreed that the claims against the defendants were “based solely on their petitioning activities,” the motion was denied because the judge concluded that the defendant’s petitioning activities were a “sham” (in other words, not based on reasonable factual or legal support). An appeals court affirmed the decision. The commonwealth’s highest court recognized the challenges the statute’s “broad conceptualization of petitioning and prioritization of its protection” create. Under the new framework, the moving party must meet a threshold to show the claims against it are “‘based on’ the [party’s] petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.” If they succeed in meeting their threshold burden, the case must be dismissed unless the person or group that filed the lawsuit can establish the communicator’s petitioning activity lacked factual or legal support and caused injury to them. Finally, the court concludes that de novo review is required for both of these stages of inquiry. Applying the new standard to the case at hand, the Supreme Judicial Court affirmed the denial of the special motion to dismiss and remanded the case to the Superior Court.

Legislative activity

In 2022, the state’s anti-SLAPP statute was amended to exclude cases brought forth for “interference with the right to access to reproductive and gender-affirming health care services” (pursuant to section 11|½ of chapter 12 of Massachusetts General Laws).

Of note

The Institute for Free Speech gave Massachusetts’ anti-SLAPP statute a rating of D+. The institute suggests expanding the statute’s scope to protect more expression.