Prince Lobel 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. Partner Jeffrey J. Pyle authored the brief on behalf of the New England First Amendment Coalition (NEFAC), a non-profit devoted to protecting the freedoms of the First Amendment.
The Massachusetts legislature passed the Anti-SLAPP Law in 1994 to address “strategic lawsuits against public participation,” meaning legal 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 Anti-SLAPP Law. In Blanchard v. Steward Carney Hospital, Inc., the court held that a plaintiff who targets legitimate petitioning with a lawsuit 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.
Prince Lobel’s amicus brief for NEFAC argues that the Court should abandon the Blanchard standard 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.
You can read the amicus brief here.
If you have any questions or would like to learn more about Prince Lobel’s Media, Publishing, and First Amendment Law practice, please contact partner Jeffrey Pyle at firstname.lastname@example.org or 617 456 8143.