The Massachusetts Supreme Judicial Court has revised and simplified its approach to the state’s “Anti-SLAPP” Law, which protects the public’s First Amendment right to petition the government. In Bristol Asphalt Co., Inc. v. Rochester Bituminous Products, Inc., the court overturned its “controversial” 2017 decision, Blanchard v. Steward Carney Hospital, Inc., and greatly simplified its approach to this important statute. Prince Lobel partner Jeffrey J. Pyle authored an amicus curiae brief on behalf of the New England First Amendment Coalition (NEFAC), asking the Court to abandon Blanchard because it unduly chilled public participation in government, and to simplify and strengthen its interpretation of the Anti-SLAPP Law. The court has now done so.
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 the 2017 Blanchard decision, as we wrote at the time, the Supreme Judicial Court weakened the Anti-SLAPP Law by holding that lawsuits based solely on petitioning of the government could proceed if the court thought the claimant’s primary motivation for filing suit was something other than retaliating against or punishing the exercise of the right to petition. Primary motivation, the court held, could 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 after Blanchard 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, some courts were allowing claims against domestic violence victims who had petitioned the government for protection to proceed, where the claims would have been dismissed before Blanchard.
Prince Lobel’s amicus brief for NEFAC argued that the Court should abandon Blanchard and return to the language of the statute, which focuses on whether the petitioner’s speech was “devoid” of “any” factual or legal merit. The brief pointed out that the Blanchard test has caused considerable burden and cost to parties and the courts, and jeopardized the right of the public to petition the government.
In its February 29 decision in Bristol, the Supreme Judicial Court agreed. It held that the Blanchard standard “strays from the statutory language” by “shift[ing] the focus to the motives of the special motion opponent, which must be determined based on documentary evidence alone.” It also invites “consideration of an open-ended list of factors, thereby inviting subjective, if not unpredictable, decision-making” and imposing “complexity” that “further serves to lengthen the amount of time it takes for parties to litigate a special motion to dismiss, and for motion judges to rule on them.” All this, the court held, is contrary to the legislature’s intent, which was that anti-SLAPP motions should be resolved “quickly with minimum cost to citizens who have participated in matters of public concern.” Additionally, in an interesting judicial innovation, the Court included a flow chart to help future litigants and courts navigate the modified, simplified standard.
The court’s decision in Bristol will provide greater protection to those who petition the government from abusive lawsuits that chill government participation. Members of the public should not have to fend off multi-million-dollar lawsuits simply for speaking out on issues of concern to the community. Now, so long as government petitioning is not “devoid” of “any” factual or legal support, those who speak out will be shielded from lawsuits targeting it.
You can read the Court’s decision here, and Prince Lobel’s amicus brief for the New England First Amendment Coalition 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 [email protected] or 617 456 8143.