In a surprise ruling, the Massachusetts Supreme Judicial Court (“SJC”) has fundamentally changed the legal framework for determining whether a claim is a “strategic lawsuit against public participation” (SLAPP) subject to dismissal under the state’s “anti-SLAPP law,” G.L. c. 231, § 59H. That statute, passed in 1991, provides that if a plaintiff brings a lawsuit “based on” the defendant’s exercise of its First Amendment right to petition governmental bodies, a court must dismiss the case—and award reasonable attorneys’ fees—unless the plaintiff proves that the defendant’s petitioning was devoid of legal or factual merit and that the plaintiff suffered damages. In Blanchard v. Steward Carney Hospital, Inc., SJC-12141 (May 23, 2017), however, the SJC held that a plaintiff can avoid dismissal by showing that its claim was not “brought primarily to chill” the defendant’s legitimate exercise of its right to petition. This new “motive” test adds significant uncertainty to the anti-SLAPP law and will likely encourage more defamation claims against citizens groups, bloggers, and opinion writers in Massachusetts.
The case arose in 2011, when the Steward Carney Hospital in Boston received reports of abuse at its adolescent psychiatric unit. The hospital responded by dismissing all the registered nurses and mental health counsellors in the unit and issuing statements to its employees and the press that arguably suggested the nurses bore responsibility for the incidents. The nurses sued the hospital for defamation.
The hospital and other defendants in the case filed a “special motion to dismiss” the defamation claims under the anti-SLAPP law. Under a legal framework established in 1998, the hospital’s burden was to show that “the claims against it are ‘based on’ [its] petitioning activities alone and have no substantial basis other than or in addition to . . . petitioning activities.” Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156, 167–68 (1998). “Petitioning” is defined to include statements “in connection with an issue under consideration by a[n] . . . executive . . . body.” At the time the hospital made its statements about the nurses, the Department of Mental Health was deciding whether to revoke the hospital’s license to operate the adolescent mental health unit. The hospital claimed that its statements were made “in connection” with that review and in an attempt to influence the government to preserve the license. If the hospital succeeded in showing the libel claims were based on such “petitioning,” the burden would shift to the nurses to show that the hospital’s petitioning was a sham, failing which their claims would be dismissed.
On appeal, the Supreme Judicial Court held that some of the hospital’s statements amounted to protected petitioning. However, instead of shifting the burden to the nurses as required by prior cases, the court established a new way for plaintiffs to escape anti-SLAPP dismissal. It held that even where a defendant is sued only for First Amendment-protected petitioning activity—and even where that petitioning has factual and legal merit—a court can deny an anti-SLAPP motion if the plaintiff shows that its primary motivating goal in bringing the claim was “not to interfere with and burden defendants’ petition rights.” The motion judge “is to assess the totality of the circumstances” relating to the plaintiff’s “asserted primary purpose in bringing its claim,” including whether the plaintiff’s claims have minimal merit. If this non-chilling “primary” motive is found, the plaintiff need not demonstrate that the petitioning lacked a basis in fact or law.
The new standard weakens the anti-SLAPP law and will likely result in more defamation claims against citizens groups, bloggers, opinion writers, and the press. In practice, a defamation plaintiff will always insist that its “primary” motivation in bringing suit was to recover damages, not to suppress petitioning. Defendants seeking to rebut such claims will now have the unenviable task of trying to show their opponents’ bad motive—without the benefit of discovery. If a defendant needs to take discovery to show the plaintiff’s motive under the “totality of the circumstances,” anti-SLAPP motions are likely to become increasingly burdensome and expensive—the very outcome the statute was intended to avoid in the first place.
By placing so much emphasis on the plaintiff’s subjective motivation, the ruling threatens to vest more discretion in the hands of trial judges to deny anti-SLAPP motions. Before, the test examined strictly objective factors—what allegedly wrongful actions underlie the claims, and if they amount to petitioning activity, did the petitioning have some merit? To be sure, the Blanchard inquiry places the burden of proof on the motive question on the plaintiff. Consistent with that standard, lower courts should presume that any lawsuit with no substantial basis other than petitioning activity is primarily motivated by the desire to suppress the right to petition. However, judges who simply don’t like the anti-SLAPP law, or who don’t think the plaintiff should have to pay the defendant’s attorneys’ fees, will now have greater leeway to deny a special motion to dismiss simply by finding a proper subjective motive.
The court’s reluctance to dismiss the claims of the nurses in Blanchard was understandable. The legislature passed the statute to provide for quick resolution of suits brought “to intimidate opponents’ exercise of rights of petitioning and speech,” Duracraft, 427 Mass. at 161, and there is no indication the nurses brought suit to discourage the hospital from continuing to speak out in support of its license. In resolving this difficult case, however, the Court has made the path to dismissal under the anti-SLAPP law more circuitous and doubtful, to the detriment of the First Amendment values it seeks to protect.
If you have any questions or would like to learn more about how the new anti-SLAPP decision may affect you, please contact partner Jeffrey Pyle at [email protected] or 617 456 8143.
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