Like most jurisdictions, Massachusetts’ anti-SLAPP statute provides a quick remedy for citizens targeted by frivolous lawsuits based on their government petitioning activities. In a recent case decided by the Massachusetts Supreme Judicial Court, Fustolo v. Hollander, the Court made clear that the protections of the statute, while broad, do not apply to reporters whose writing does not involve petitioning the government on their own behalf.
In Fustolo, the reporter, Fredda Hollander, was both a member of a local community group and a paid reporter for a local Boston newspaper, The North End Regional Review. In 2006, Hollander wrote five articles relating to community meetings where several local real estate projects of plaintiff-developer Fustolo were discussed. Fustolo, unhappy with the coverage, brought a state court defamation action, alleging that Hollander falsely reported certain facts and statements by city officials and others. He further contended that the articles caused widespread opposition to his proposed local projects, leading to his being compelled to withdraw applications for variances before the local land use authority.
Hollander responded to the complaint with a special motion to dismiss – a critical provision of anti-SLAPP statute protection. She contended that the articles gave expression to her personal interests as a member of the community “keenly interested in its development and protection.” She also argued that her reporting “played an essential role” in facilitating the protected petitioning activity of the local community group on which she was reporting.
At the lower court level, the motion to dismiss was denied because: the articles were deemed written in her capacity as a reporter; Hollander received compensation for writing them; and Hollander did not purport to speak on behalf of the local community organization in writing the challenged articles.
The Supreme Judicial Court affirmed the denial of the reporter’s motion to dismiss. The court noted at the outset that, to prevail on a special motion to dismiss, the movant must make a threshold showing that the claims against it “are based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.”
Although the anti-SLAPP statute’s language defining “a party’s exercise of its right to petition” was broad, the court affirmed a limited interpretation in this instance. In order to come within the statute’s reach, the court held that defendants must be petitioning the government on their own behalf. The court held that “the statute is designed to protect overtures to the government by parties petitioning in their status as citizens.”
Here, the court determined that the reporter, Hollander, lacked protection under the anti-SLAPP statute because the reporter was not herself petitioning. “There is nothing about the role or function of the staff reporter of an independent newspaper that by its nature renders the reporter representative or agent of every, or indeed any, community organization that the reporter may cover, particularly where, as here, the reporter affirmatively denies representing a particular viewpoint.”
The court went on to discount any concern that lack of anti-SLAPP protection would chill the reporting of civic meetings. The court noted that “common law defamation with its constitutional overlay … provides reporters with protection for both opinions and, of probable greater relevance to this case, for fair reports of public meetings of both government bodies and organizations.”
On one point, the court accepted Hollander’s argument. The court disagreed that the compensation Hollander received as a reporter disqualified her articles as protected petitioning activity. The court stated that its analysis would not have changed if Hollander had written the same articles, pursuant to the same instructions from the publisher, as a volunteer reporter.