SJC Declines to Extend Anti-SLAPP Protections to Reporters

February 1, 2010 12:00 am

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BOSTON — The Massachusetts Supreme Judicial Court today refused to extend to news reporters legal protections for petitioning activity that currently are available to lawyers, employees of advocacy groups, and citizens personally seeking government action.

The case arose when real estate developer Steven Fustolo sued Fredda Hollander, a reporter for the Regional Review, a North End neighborhood newspaper. Fustolo charged that Hollander had defamed him in five newspaper articles that she wrote about his real estate holdings and government inquiries into them. In response, Hollander asked the court to dismiss the case on the basis that she was exercising her “right to petition” under the broad definition of “petitioning” in Massachusetts law, and that her statements had a reasonable factual basis.

The law, known as the Anti-SLAPP statute — SLAPP stands for “Strategic Lawsuit Against Public Participation” — is designed to deter developers and others who file lawsuits to chill public discussion and frighten people away from getting involved in issues of public concern. The law defines petitioning broadly, as including statements likely to enlist public participation in getting the government to take action. Hollander argued that her articles in the neighborhood newspaper were designed to do that.

The anti-SLAPP statute allows a person who is sued for petitioning activity to have the case thrown out quickly and be awarded attorneys fees as long as the petitioning had a reasonable factual or legal basis. This helps protect the First Amendment right to petition. But a lower court judge denied Hollander’s motion to throw the case out, asserting that because she worked as a reporter and was paid for her work, she was not petitioning the government as defined by the anti-SLAPP law.

Today’s ruling affirms the denial of the motion to dismiss although on somewhat different grounds. The SJC held that news reporters — who write supposedly objective factual reports — are not advocating for or seeking government action — and therefore are not entitled to the protections of the anti-SLAPP statute. Instead, the Court said, they must rely on the common law of defamation and the defense of fair reporting.

The unanimous SJC opinion, authored by Justice Margot Botsford, held that a person is protected by the anti-SLAPP statute only if personally seeking redress of a grievance of his or her own. But Justice Botsford acknowledged other cases where that limitation was not imposed, distinguishing this case from one in which an attorney was given protection under the anti-SLAPP statute for his statements on behalf of his clients, and not for himself. In today’s case, the Court asserted that reporters occupy a different position with respect to a petitioning party than does the party’s attorney, stating, “There is nothing about the role or function of a staff reporter of an independent newspaper that by its nature renders the reporter a representative or agent of every, or indeed any, community organization that the reporter may cover,” particularly where the reporter denies representing a particular viewpoint.

Under the Fustolo v. Hollander decision, an opinion columnist appears likely to be protected under the anti-SLAPP statute, as is an employee of an advocacy organization, but the ruling is silent as to whether a newspaper publisher may be protected by the statute for news articles that are supposedly objective reports but are actually aimed at encouraging the public to get the government to take action.

SJC decision:

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