NEFAC Files Amicus Brief Urging Mass. High Court to Protect the Public from SLAPP Suits

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The New England First Amendment Coalition filed an amicus brief today with the Massachusetts Supreme Judicial Court, asking it to revisit its interpretation of the state’s anti-SLAPP law and protect the right of the people to petition the government.

“The court has a great opportunity to recalibrate its approach to the anti-SLAPP Law,” said Jeffrey J. Pyle, an attorney at Prince Lobel in Boston who drafted the brief on behalf of NEFAC. “The statute protects legitimate petitioning of the government, full stop. We are hopeful the court will render a decision that applies the law as written.”

The Massachusetts legislature passed the anti-SLAPP statute in 1994 to address “strategic lawsuits against public participation,” meaning claims based solely on a person’s petitioning of the executive, legislative, or judicial branches of government.

The objective of SLAPP suits is not to win them, but to inflict crippling attorneys’ fees and costs on people for trying to have their voices heard. They have been used to punish domestic violence victims for asking for restraining orders, opponents of development projects for raising concerns at public meetings, and activists who speak out against environmental contamination.

The anti-SLAPP law requires dismissal of claims based solely on someone’s “petitioning activity” unless the petitioning lacked any factual or legal support and caused damage. If a motion to dismiss under the anti-SLAPP law is granted, the party who brought the claim must pay reasonable attorneys’ fees and costs.

In 2017, the Supreme Judicial Court issued a controversial decision weakening the law. In Blanchard v. Steward Carney Hospital, Inc., the court held that a filer who targets legitimate petitioning can avoid dismissal if it shows that its “primary motivating goal” in bringing the claim was not to interfere with and burden the defendant’s petition rights. Primary motivation, the court held, is to be shown by the totality of the circumstances, including the merit of the claims, their timing, the relative power of the parties, and other factors.

Courts since Blanchard have struggled with how to determine a party’s motivations early in the case based on documents and affidavits, and without expensive discovery. The SJC itself suggested in a 2022 decision that simplification of the state’s anti-SLAPP case law may be in order. Meanwhile, courts have recently been allowing some claims targeting meritorious petitioning to proceed where they would have been dismissed before Blanchard.

NEFAC’s amicus brief argues that the Court should abandon the Blanchard case and return to the language of the statute, which focuses on whether the petitioner’s speech had factual or legal merit. The brief points out that the Blanchard test has caused considerable burden and cost, both to parties, and the courts, and is jeopardizing the right of the public to petition the government.

NEFAC is the region’s leading advocate for the First Amendment and the public’s right to know about government. All coalition briefs, advocacy letters and statements can be found here.

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.

Leadership Circle donors include the Rhode Island Foundation, The Boston Globe, Paul and Ann Sagan, and the Robertson Foundation. Major Supporters include Hearst Connecticut Media Group, Boston University, the Academy of New England Journalists, the Society of Professional Journalists Foundation, Genie Gannett for the First Amendment Museum, Linda Pizzuti Henry, the Champa Charitable Foundation Fund and Connecticut Public.