Published on: June 6, 2017

SLAPP stands for strategic lawsuit against public participation and the Anti-SLAPP law is codified under M.G.L. c. 231, s.59H. The purpose of the law is to prevent a person or business from suing someone for the sole reason of trying to silence that person’s petitioning activity.  For example, a group of protestors consistently rail against the local Board of Selectman as the protestors believe the Board is corrupt and engaged in self-dealing.  In response, the Board of Selectman brings a frivolous lawsuit against the protestors making meritless allegations and claims.  Here, the lawsuit is clearly a means to try to silence the protestors and shut down their public outcry against the Board members.  In such a case, the protestors would file an Anti-SLAPP special motion to dismiss in Court in order to get the Selectmen’s suit dismissed. The Supreme Judicial Court (“SJC”) has just issued a decision changing the legal test of review of special motions to dismiss under the Anti-SLAPP statute.  But first, some important background.

For many years, the legal standard for Anti-SLAPP cases was set forth in the case of Duracraft v. Holmes Prods. Corp., 427 Mass. 156 (1998).  The Duracraft test worked as follows:

  1. The moving party (typically the Defendant) must make a threshold showing that the claims against it are based-on the petitioning activities alone and have no substantial basis other than the petitioning activities. Essentially this means that the Plaintiff’s case was filed solely in response to, or aimed at, the petitioning activity.
  2. If the moving party can make that showing, the non-moving party (typically the Plaintiff) must then establish “by a preponderance of evidence that the Defendant lacked any reasonable factual support or any arguable basis in law for its petitioning activity” and that the petitioning activity caused them harm.

In my example, the protestors, as the party filing the Anti-SLAAP special motion to dismiss, must show that the Selectman’s suit is based solely on their petitioning activities (ie, protesting) and that the suit has no other substantial basis. If the protestors can make such a showing, the burden of proof then switches to the Selectman to show that the protestors lack any reasonable factual or legal basis for their protesting.

A protestor can claim a government employee is corrupt if there is a factual basis, but the protestor cannot baselessly accuse a Selectman of something bereft of factual support. There is no constitutional protection to assert lies about another.  As the non-moving party, the Selectmen would need to show the protestors’ petitioning is a sham in that it has no reasonable basis in law or fact.  In sum, Duracraft can be seen as a two part test where the burden of proof starts with the moving party and then switches to the non-moving party.

What constitutes petitioning activity? In my example above it would be the right of Town residents to protest against a public body.  Generally speaking it has been defined by statute to include any statement made before or submitted to a legislative, executive, or judicial body, or other governmental proceeding,” as well as statements made in connection with an issue under consideration by such bodies, statements reasonably likely to encourage consideration or review of an issue in front of such bodies or a statement reasonably likely to enlist public participation relative to a particular issue.  Essentially any statement regarding the right to petition the government is covered.

The newly issued decision in the case of Blanchard v. Steward Carney Hospital created a new Anti-SLAPP framework by which all cases will now be viewed.  In this case, the SJC articulated its concern that the Duracraft test would cause some cases to be dismissed that should not have been dismissed.  The test was therefore seen as being over-inclusive.  The court stated that “the present framework does not provide adequate means to distinguish between meritless claims targeting legitimate petitioning activing and meritorious claims with no such goal.” The Court did not want the special motion to dismiss under the Anti-SLAPP statute to be “cudgel” used to defeat meritorious suits.

The Court stated that “the statute as written does not focus on ascertaining whether the nonmoving party’s claim is in fact a “SLAPP” suit. Instead, it looks only to whether the special movant’s own legitimate petitioning activity forms the basis of that claim.” The Court found that such a framework would leave open the possibility of a meritorious claim concerning petitioning activity (meaning not solely based on silencing the petitioning activity) would be wrongfully dismissed.  To correct this issue, a new prong was added to the second part of the test under Duracraft.

As stated above, once the burden switches to the non-moving party, the non-moving party must prove that the moving party lacked reasonable factual support or any arguable basis in law for its petitioning activity. Now, under Blanchard, the non-moving party has a separate basis to defeat a special motion to dismiss under the Anti-SLAPP statute and maintain its claims.  If the non-moving party cannot prove the factual/legal support argument, it may then attempt to “establish that its suit was not ‘brought primarily to chill’ the [moving party’s] legitimate exercise of its right to petition.” Blanchard thus provides a second means for a party to avoid dismissal.

What this new second-stage prong boils down to is that the non-moving party may “defeat the special motion to dismiss by demonstrating…that each challenged claim does not give rise to a ‘SLAPP’ suit.” This may be accomplished by proving “that each such claim was not primarily brought to chill the special movant’s legitimate petitioning activities” by showing that its primary motivating goal in bringing the lawsuit was not interfere with the moving party’s petitioning rights but rather to bring forth a legitimate claim.  In other words, the non-moving party must prove that it had a good faith reason to bring the case against the Defendants other than to defeat the Defendant’s petitioning rights.

In Blanchard, a group of nurses were fired from a hospital after a number of alarming incidents concerning patient negligent.  The president of the hospital made public statements to the Boston Globe which disparaged the fired nurses.  In response, the nurses filed a defamation action against the president, hospital and the investigator hired by the hospital to look into the nurses’ conduct.  The president and hospital filed an Anti-SLAPP motion seeking to have the case dismissed as they believed the suit sought to silence their petitioning activity.  Here, the petitioning activity was the right to make statements relative to a governmental investigation into the hospital.  Since the Department of Mental Health—a governmental body—was considering the revocation of the hospital’s license due to the reported instances of patient neglect, the president’s statements to the Globe were rightfully seen as petitioning activity by the Court.

The Blanchard case is now on remand back to the Superior Court so the Anti-SLAPP motion can be reviewed by the lower court under the newly modified legal standard.  In Superior Court it will be up to the nurses to first attempt to establish that there was no factual or legal support for the public statements made against them by the hospital’s president.  If the nurses cannot do so, they can then attempt to show that their defamation case is not a “SLAPP suit” by demonstrating that there is a good faith basis for their claims other than to interfere with the Defendant’s petitioning rights.  Even though the nurses’ case is necessarily about the petitioning activity—since the suit is about the president’s comments being defamatory—the nurses can prevent the dismissal of their suit essentially by showing they do in fact have a legitimate claim for defamation and that they suffered harm from the defamation.

The Blanchard Test should prove to be a beneficial addition to Anti-SLAPP jurisprudence. The additional prong to the non-moving party’s burden allows the non-moving party another means through which to demonstrate that its claims are meritorious and deserving of consideration by the court.  The test is by no means burdensome or confusing to litigants and should allow legitimate claims to avoid being dismissed where the Duracraft framework may have resulted in their dismissal.

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