The Scalpel or the Bludgeon? Twenty Years of Anti-SLAPP in MassachusettsPosted: July 9, 2014
This December will mark the twentieth anniversary of Chapter 231, Section 59H of the Massachusetts General Laws, commonly known as the Massachusetts anti-SLAPP statute. A SLAPP suit (SLAPP stands for “strategic litigation against public participation”) is often described as a “generally meritless suit brought by large private interests to deter from or punish common citizens for exercising their political or legal rights.” Section 59H allows a party to bring a “special motion to dismiss” such suits.
Governor William Weld, who argued that Section 59H was overbroad, once characterized it as “a bludgeon when a scalpel would do.” The first two decades of cases brought under the statute tell a story of tension and negotiation between the opposite impulses described by Governor Weld’s metaphor. While some decisions have expanded – or confirmed – broad access to the statute’s protections, other decisions have sharpened and narrowed the kind of activity it protects.
The Rise of the SLAPP
The petition clause of the First Amendment guarantees “the right of the people . . . to petition the government for a redress of grievances.” In the latter half of the twentieth century, activists and other individuals increased their petitioning activity in all three branches of government, from speaking out at town meetings to lobbying Congress. In the judicial arena, new legislation such as Section 304 of the 1970 Clean Air Act allowed private parties to sue to enforce public rights. Citizen petitioners were no longer “to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of” public interests.
However, beginning in the 1970’s, those same petitioners increasingly found themselves targeted by retaliatory SLAPP suits. Landlords were suing tenants who reported building violations, businesses were suing customers who made consumer complaints, and public officials were suing their political critics. The classic scenario involved land use. For example, a neighbor opposed a new real estate development by testifying at a zoning hearing or asking a court for an injunction. The developer responded with a SLAPP suit against the neighbor, typically demanding ruinous damages on the grounds that the petitioning activity was defamatory or constituted an abuse of process.
SLAPP suits were rarely, if ever, successful, because the First Amendment guarantees a qualified immunity for petitioning activities. However, winning was not the point. Simply by filing the SLAPP suit, the plaintiff forced the petitioner to divert his focus away from the petitioning activity to deal with a costly legal battle against an opponent with greater resources. SLAPP suits were often difficult to dismiss at the pleading stage and, by the time the petitioners finally prevailed, they were financially exhausted, emotionally drained, and very possibly deterred from engaging in further petitioning.
The Origins of Anti-SLAPP
In 1984, the Supreme Court of Colorado developed a procedure that — while not preventing SLAPP suits altogether — sought to identify them at an early stage for quick disposition. Protect Our Mountain Environment, Inc. v. District Court,677 P.2d 1361 (Colo. 1984) was a classic SLAPP scenario, in which a developer sued a citizens group in retaliation for its public opposition to a building project. The Court announced that, henceforth, where a claim is based on petitioning activity and the petitioner files a motion to dismiss, the motion would be converted to one for summary judgment. To overcome that motion, the SLAPP plaintiff would have to show that the petitioning activities in question “were devoid of reasonable factual support.” This new procedure was a self-conscious attempt to balance, on the one hand, the danger that SLAPP suits may discourage legitimate petitioning and, on the other, the dangers of illegitimate “sham” petitioning.  Over the next decade, states began enacting statutory mechanisms loosely modeled after the Colorado decision.
The Massachusetts Anti-SLAPP Statute
The Massachusetts anti-SLAPP statute traces its roots to a 1991 suit brought by a developer against residents of Rehoboth who had signed a petition to oppose a construction project. The suit was eventually dismissed, but only after nine months of litigation and over $30,000 in attorneys’ fees. This episode caused Massachusetts legislators to take note of a “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” 
Anti-SLAPP legislation modeled in part after Colorado’s expedited summary judgment procedure was first introduced in the Massachusetts House of Representatives in 1993. The bill that was eventually codified as Section 59H provided that a “party may bring a special motion to dismiss” any claim which is “based on that party’s exercise of its right to petition.” The right to petition is defined broadly as:
[A]ny written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.
The motion judge is required by Section 59H to hear a special motion as expeditiously as possible, and to grant it unless the SLAPP plaintiff can show that “(1) the [petitioner’s] exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the [petitioner’s] acts caused actual injury to the responding party.” All discovery is stayed until the motion is decided, except that the court may order specified discovery pertinent to the anti-SLAPP motion “for good cause shown.” In the event the motion is granted, the trial court “shall award the [petitioner] costs and reasonable attorneys’ fees.”
Governor Weld vetoed the bill and endorsed a more limited mechanism aimed at the dismissal of improper lawsuits brought by real estate developers. However, on December 29, 1994, the Massachusetts House and Senate overrode the veto and Section 59H became effective.
Setting the Standard
The first Section 59H case to reach the Massachusetts Supreme Judicial Court (“SJC”) was not a typical SLAPP scenario. Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1997) involved a former executive of a company who allegedly violated a nondisclosure agreement while preparing for and testifying at a deposition. The company sued for breach of contract, and the defendant filed a Section 59H motion, arguing that the breach of contract claim was “based on” his participation in the judicial process, which constituted petitioning activity. The motion was denied.
On appeal, the SJC announced two important interpretations of Section 59H, one which expanded access to the statute’s protections and the other which significantly narrowed its scope. First, the Court confirmed that the anti-SLAPP law was not limited to issues of “public concern,” as it was in some other states, but also protected petitioning activity with respect to private matters, such as the underlying contract dispute in Duracraft.
Second, a major issue for critics of Section 59H had been the breadth of the phrase “based on.” If any claim “based on” petitioning activity was a SLAPP suit, that could lead to early and unfair dismissal of perfectly legitimate claims or counterclaims merely because they were somehow connected to petitioning activity. The breach of contract claim in Duracraft was but one example. To protect one kind of petitioning (responding to a notice of deposition), the statute was arguably punishing another kind (bringing a legitimate contract claim). The Court addressed this issue by narrowly construing the statutory text and adopting a burden-shifting mechanism for future application of the statute:
- The petitioner bringing the anti-SLAPP motion must make a threshold showing through pleadings and affidavits that the claims against it are not just loosely “based on” petitioning, but “based on the petitioning alone and have no substantial basis other than or in addition to the petitioning activities.”
- Then, the burden shifts to the nonmoving party to show actual injury, and to demonstrate that the petitioning was “devoid of any reasonable factual support or any arguable basis in law.”
By establishing this procedure, Duracraft effectively rescued the statute from the potentially unconstitutional breadth of its own literal text and ensured that it would be applied in a manner consistent with the federal right to petition. Thus, petitioning activity had immunity, but it was a qualified immunity, one that potentially could be overcome by a party with a legitimate grievance.
Is Abuse of Process Dead?
An issue left undecided by early SJC caseswas the statute’s effect on the tort of abuse of process. This tort is, by definition, based on petitioning activity. However, it concerns not so much the act of petitioning as the “ulterior or illegitimate purpose” for that petitioning. In Fabre v. Walton, 436 Mass. 517 (2002), the defendant had obtained a domestic violence restraining order against her ex-boyfriend. In retaliation, the ex-boyfriend sued the defendant for abuse of process, alleging an improper motive for obtaining the restraining order (harming his career). The defendant filed a Section 59H motion. She argued that asking for a restraining order was protected petitioning activity, but the motion was denied.
On appeal, the ex-boyfriend argued that his abuse of process claim was based not on the defendant’s restraining order per se (the petitioning activity), but on the defendant’s alleged “ulterior motive” for obtaining the restraining order. The SJC refused to recognize such a fine distinction. Irrespective of the defendant’s alleged motive, the only conduct complained of was her petition for the restraining order. The alleged motive for the petitioning was irrelevant, and the Section 59H motion should have been granted.
Did Section 59H and cases like Fabre effectively eliminate common law claims for abuse of process and malicious prosecution? The SJC confirmed the continued existence of these torts in McLarnon v. Jokisch, 431 Mass. 343 (2000). Nevertheless, such claims are undeniably risky since the statute’s passage, and the risk was perhaps increased after Wenger v. Aceto, 451 Mass. 1 (2008), in which the SJC held that, of course, unsuccessful petitioning activity was protected by Section 59H. According to the Court, the “critical determination is not whether the petitioning activity in question [was] successful, but whether it contain[ed] any reasonable factual or legal merit at all.”
Who Is a Petitioner?
Perhaps the most contentious issue in Massachusetts anti-SLAPP jurisprudence has concerned who gets to call themselves a “petitioner.” In Kobrin v. Gastfriend, 443 Mass. 327 (2005), a psychiatrist acting as a government expert witness in a malpractice proceeding was sued over the content of his testimony. The psychiatrist’s Section 59H motion was initially allowed.
On appeal, however, the SJC reversed. The statute describes an anti-SLAPP motion as one “based on [the moving] party’s exercise of its right to petition” (emphasis added). As an expert testifying for the government, the psychiatrist was not exercising his right to petition. Therefore, the Court held, Section 59H did not apply. A vigorous dissent, authored by Justice Martha Sosman, argued that the psychiatrist’s testimony was within the statute’s definition of petitioning, which included “any written or oral statement made before or submitted to a” government body.
But while Kobrin signified an important limit on what constituted petitioning under Section 59H, a parallel line of cases has expanded access to the statute for agents and affiliates of petitioners. This includes parents reporting crimes on behalf of children, McLarnon v. Jokisch, 431 Mass. 343, 349 (2000), and attorneys engaged in petitioning activity on behalf of clients. Plante v. Wylie, 63 Mass. App. Ct. 151, 156-157, rev. denied, 444 Mass. 1103 (2005). Most recently, in Town of Hanover v. New Eng. Reg’l Council of Carpenters, 467 Mass. 587 (2014), a municipality brought an abuse of process action against a union that allegedly had worked behind the scenes to enlist, and then to provide organizational and legal support for, a group of citizens seeking judicial review of a controversial expenditure of town funds. In a decision that will no doubt provide greater protection for all kinds of advocacy groups, the SJC held that the union was engaged in petitioning activity under Section 59H because, unlike the psychiatrist in Kobrin,it was advancing a cause in which it believed and, presumably, shared an interest.
The Line Between Petitioning and Other Speech
Although grounded in the First Amendment’s petition clause, Section 59H’s definition of petitioning arguably protects a wide range of speech not aimed directly at the government but nevertheless “in connection with” petitioning activity. The line between petitioning and other speech was explored by the SJC in Cadle Co. v. Schlictmann, 447 Mass. 242 (2006). In that case, an attorney made allegedly defamatory statements on a website and to newspapers about a debt collection agency with which he had an ongoing legal dispute. The agency sued for defamation, and the attorney filed a Section 59H special motion to dismiss, which the motion judge denied.
On appeal, the SJC, citing Wynne v. Creigle, 63 Mass. App. Ct. 246, rev. denied, 444 Mass. 1105 (2005), acknowledged that statements by petitioners to the press, where they essentially mirror the petitioner’s statements to government bodies are protected by Section 59H. However, that didn’t mean that every statement concerning any issue under government review was protected. For example, in Global NAPs, Inc. v. Verizon New England, Inc., 63 Mass App. Ct. 600 (2005), a company’s statements about a government investigation of its competitor were not protected, because the company was not petitioning on its own behalf. This distinction is further echoed in cases like Ayasli v. Armstrong, 56 Mass. App. Ct. 740 (2002), rev. denied, 439 Mass. 1101 (2003), in which the Appeals Court separated protected petitioning activity (contacting municipal authorities to stop a building project) from related tortious behavior (engaging in physically intimidating acts in order to stop the project). Similarly, in Cadle, the SJC held that the attorney’s statements to the press and on his website were not protected because they exceeded the scope of the petitioning activity, and instead they were designed to attract new clients and gain other tactical advantages.
Making a Federal Case
Before 2010, a Section 59H motion could not be filed in federal court because it was regarded as a procedural mechanism — not a substantive right — which conflicted with the standards governing dispositive motions pursuant to Rule 12(b)(6) and Rule 56. Baker v. Coxe, 940 F. Supp. 409, 417 (D. Mass. 1996). However, in Godin v. Schencks, 629 F.3d 79, 92 (1st Cir. 2010), the First Circuit held that Maine’s anti-SLAPP statute was sufficiently substantive in nature such that failure to apply it in federal court diversity actions would frustrate the goals of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938): the discouragement of forum shopping and the equitable administration of the law. Three years later, the court in Bargantine v. Mechs. Coop. Bank, 2013 U.S. Dist. LEXIS 169284 (D. Mass. 2013) recognized that, because the Massachusetts anti-SLAPP statute was identical to the Maine statue, Section 59H should apply in diversity actions in the District of Massachusetts.
The Bludgeon And the Scalpel
After twenty years of case law, it would be unfair to characterize the Massachusetts anti-SLAPP statute as a bludgeon or a scalpel. Section 59H’s application by courts has aspects of both metaphors, sometimes within the same case. On the one hand, the decision in Duracraft maintained access to the statute for matters of private concern but, on the other hand, it substantively narrowed the statutory text to ensure that the statutory protection is limited to petitioning activity “alone.” Subsequent cases further reflect these dialectic impulses of expanded access and limited definitions of “petitioning.” On the one hand, cases like Wenger, Town of Hanover and the introduction of Section 59H into federal court further expand access to the statute for different types of litigants. On the other hand, Kobrin and Cadle significantly limit the kinds of activity that are identified as petitioning in the first place. It seems likely that — as the courts strive to balance the rights of the parties in a manner that is fair and consistent with the First Amendment right to petition — these opposite impulses will continue to shape the law over the next twenty years.
David Kluft is a partner at Foley Hoag LLP, a member of the BBJ Board of Editors, and an editor of the trademarkandcopyrightlawblog.com.
 Kobrin v. Gastfriend, 443 Mass. 327, 337 (2005), quoting Wilcox v. Superior Court, 27 Cal. App. 4th 809, 816 (1994). The term “SLAPP” was coined by two professors at the University of Colorado. See George Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3 (1989).
 See Joseph Brecher, The Public Interest and Intimidation Suits: A New Approach, 28 Santa Clara L. Rev. 105, 114 (1988).
 First Amendment petitioning immunity is qualified, not absolute, and can be overcome by a showing of “actual malice.” SeeMcDonald v. Smith, 472 U.S. 479, 481 (1985) (letter to President regarding executive appointment not absolutely privileged), citing New York Times v. Sullivan, 376 U.S. 254 (1964).
 This language derives from the Noerr-Pennington doctrine, pursuant to which petitioning activity is immune from antitrust liability unless it is a “mere sham to cover what is actually nothing more than attempt to interfere directly with the business relationships of a competitor.” See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965).
 See 10 Del. C. § 8138 (1992); Cal. Civ. Proc. Code § 425.16 (1993); N.Y. Civ. Rights Law §§ 70a (1993); R.I. Gen. Laws §§ 9-33-1 — 9-33-4 (1993); Minn. Stat. Ann. §§ 554.01 et seq. (1994); Neb. Rev. Stat. §§ 25-21,241 et seq. (1994).
 The legislative history set forth in this section is derived from Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998); Kobrin v. Gastfriend, 443 Mass. 327 (2005), Scanlon v. McHugh, 4 Mass. L. Rep. 334 (Mass. Super. Ct. 1995); and sources cited therein.
 Later important refinements to Section 59H procedure included Baker v. Parsons, 434 Mass. 543 (2001) (nonmoving party must meet burden by “preponderance of the evidence”); McLarnon v. Jokisch, 431 Mass. 343 (2000) (judge has no discretion to deny award of attorneys’ fees to prevailing anti-SLAPP movant); and Fabre v. Walton, 436 Mass. 517 (2002) (permitting interlocutory appeal to Appeals Court after denial of Section 59H motion). Most recently, Polay v. McMahon, SJC-11460 (2014), the SJC held that a prevailing petitioner was entitled to attorneys’ fees notwithstanding the fact that a liability insurer had paid for his defense.
 The Boston Bar Journal previously published an analysis of this issue by Richard J. Yurko and Shannon Choy, entitled Reconciling The Anti-SLAPP Statute with Abuse of Process and Other Litigation-Based Torts, 51 B.B.J. 15 (2007). Richard also provided valuable input to this author.
 Later decisions concerning this issue includeMoriarty v. Mayor of Holyoke, 71 Mass. App. Ct. 442, rev. denied, 451 Mass. 1107 (2008) (Section 59H not available to government agents acting in official capacity); Fustolo v. Hollander, 455 Mass. 861 (2010) (Section 59H did not protect journalist writing on issues about which others had petitioned).
 The attorney also cited MacDonald v. Paton, 57 Mass. App. Ct. 290 (2003), in which theAppeals Court had concluded that a website run by a politician was an interactive public forum in which citizens discussed local governance, and therefore was a protected petitioning activity. The Supreme Judicial Court distinguished that case on the grounds that, while the website in MacDonald had been interactive and non-commercial, the attorney’s website in Cadle solicited clients and did not provide a space for public discussion.