July 23, 2009

Newspaper Wins Dismissal of Defamation SLAPP Suit

Statute applies to commercial media entities.
A Massachusetts trial court judge recently dismissed a defamation case brought by a police chief against my clients, a local newspaper and its publisher. The court’s decision in the case, Thomas A. Joyce v. Robert Slager and The Wareham Observer, appears to be the first known decision in Massachusetts where a defamation case against a commercial media defendant has been dismissed under the Massachusetts anti-SLAPP statute.

The court determined that the statements at issue were protected petitioning activity, rejected plaintiff’s contention that prior Massachusetts case law barred commercial entities or commercial media entities from the statute’s protection, and concluded that the special motion to dismiss must be allowed because the plaintiff failed to meet his burdens under the statute.

Plaintiff Thomas Joyce has been chief of police in Wareham, Massachusetts, for many years. The Wareham Observer is a small, weekly newspaper, which seeks to encourage citizen participation in town government. Defendant Robert Slager is the publisher of the paper, and, at the time of the subject publications, its sole full-time employee.

In his complaint, Joyce cited as false and defamatory three specific items: a headline, a paragraph in an opinion column, and a sentence in a short blurb, asserting that each was published “with actual malice and actual knowledge of its falsity or a high degree of awareness of its probable falsity.”

We Said

Defendants argued that the anti-SLAPP statute applies to newspapers and other media entities, that each of the subject statements fell within the statute’s definition of petitioning activity, and that plaintiff’s defamation claims were based solely on that petitioning activity. The defendants emphasized that commercial media were not excluded from the statute’s protection either by the terms of the statute itself or by Massachusetts common law (and that nothing in the Paton decision limited the application of the statute to non-commercial media entities), and that the statute’s protection was not restricted to petitioning activity concerning matters under active consideration.

He Said

Joyce opposed the special motion on the grounds, essentially, that “commercial media enterprises” are not entitled to protection under the statute, and that even if they are, the subject statements were devoid of reasonable factual support. He argued that the statute only protected petitioning activity of a “private citizen,” that the statute did not apply to a commercial media entity (and that MacDonald v. Paton, a 2003 decision of the Massachusetts Appeals Court, acknowledged the statute’s protection only as to a non-commercial, individual Web site operator), and that petitioning activity must involve issues under active governmental consideration.

The Decision Read

The court rejected Joyce’s arguments that the subject statements do not qualify as petitioning activity because they were made in support of a commercial enterprise, that commercial entities are barred from enjoying the protection of the statute, that petitioning activity must be by someone acting as a private citizen in order to be protected, and that no media defendant can enjoy the protection of the statute. The court also stated that petitioning activity need not be motivated by a matter of public concern or be undertaken simultaneously with active governmental review in order to be subject to the statute’s protection.

The court then stated how each of the subject statements qualified as protected petitioning activity. In doing so, the court cited instances where one or another of the three subject statements had caused people to contact selectmen, or caused selectmen to investigate Joyce’s activities. The court concluded that the defendants had met the burden of showing that Joyce’s claims were based solely on defendants’ petitioning activity, and that they were entitled to invoke the statute’s protection.

In discussing why Joyce then failed to meet his burden of showing that the petitioning activity was devoid of any reasonable factual support, the court cited the factual bases advanced by the defendants, and also noted that any minor inaccuracies found in hindsight are protected under law if a statement was reasonably supported by fact at the time it was made. Implicitly acknowledging that the standard under a special motion to dismiss is not the same as that used in assessing a rule 12(b)(6) motion to dismiss for failure to state a claim, the court further noted that Joyce could not meet his burden simply by stating conflicting facts without any support because he is not here entitled to any inferences in his favor.

Noting that Joyce did not address whether the subject statements had any arguable basis in law (one of the standards stated in the statute), the court agreed with the defendants, and concluded that the statements had at least an arguable basis in law under New York Times v. Sullivan, and, further, that in Massachusetts commentary is a legally protected expression of opinion.

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