NEFAC Requests Rehearing of Mass. Supreme Judicial Court Anti-SLAPP Case

FOR IMMEDIATE RELEASE
CONTACT Justin Silverman | 774.244.2365 | justin@nefirstamendment.org

JUNE 7 LETTER

The New England First Amendment Coalition recently requested that the Massachusetts Supreme Judicial Court rehear a case that redefined the state’s anti-SLAPP statute. Strategic lawsuits against public participation are frivolous lawsuits intended to silence speech and impose significant financial burdens on speakers.

The court in Blanchard v. Steward Carney Hospital (SJC-12141) announced a new standard for deciding whether an action should be dismissed under the anti-SLAPP statute. In a June 7 letter to the court on behalf of NEFAC, Jeffrey Pyle of Prince Lobel Tye LLP explained that the court did so “without the benefit of briefing — either by parties or amici curiae — about the benefits, drawbacks and potential unintended consequences of the new standard.”

“The kinds of parties most likely to be burdened by the costs of the new standard are those most in need of protection,” Pyle wrote. “They include low-income tenants who report building code violations; columnists or bloggers who write about corporate malfeasance; consumers who report unscrupulous business practices; and digital activists organizing collective action on social media.”

In addition to NEFAC, Pyle wrote on behalf of the American Civil Liberties Union of Massachusetts, the Reporters Committee for Freedom of the Press, the Electronic Frontier Foundation, and TripAdvisor, LLC.

The plaintiffs in the case argued in opposition to the request for a rehearing. In a June 16 response letter, they called NEFAC’s concerns “alarmist” and downplayed the ruling’s effect on the balance of power in anti-SLAPP cases. It’s unclear if the court will decide to rehear the case as most requests to do so are denied.

Prior to Blanchard, anti-SLAPP cases were decided on objective factors: what allegedly wrongful actions underlie the claims, and if those actions amount to petitioning activity, whether the petitioning had some factual or legal merit. Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156, 167-68 (1998).

In Blanchard, the court shifted the emphasis to a subjective “primary” motivation test. This new test, NEFAC argued, will substantially increase the burdens on the parties needing protection from SLAPP suits and will encourage more lawsuits to be filed against those exercising their First Amendment right to petition the government. The new test may also increase the discovery costs of the parties, which is counter to the legislative intent behind the anti-SLAPP statute.

“For these and other reasons,” Pyle wrote, “the Blanchard decision will substantially weaken the protections of the anti-SLAPP law and will chill the speech of all who speak out on matters of public concern — whether in print, online or in person.”


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.

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