Do the right thing

Yesterday the Massachusetts Supreme Judicial Court heard argument in the case of Fustolo v. Hollander, SJC-10485. The underlying action involves a defamation claim brought by a real estate developer, Steven C. Fustolo, against Fredda Hollander, a reporter for a community newspaper, the Regional Review, and a neighborhood activist. Fustolo alleged that Hollander defamed him in five articles she wrote for the paper.

Hollander appealed from a denial by Superior Court Judge Geraldine Hines of her special motion to dismiss under the Massachusetts anti-SLAPP statute, G. L. c. 231, sec. 59H.

The Massachusetts ACLU, joined by the Citizen Media Law Project and the Lawyers' Committee for Civil Rights, submitted an amicus brief in support of Hollander's position.

Copies of the briefs submitted by the parties, and the amicus brief, can be found here.

Both Hollander's reply brief and the amicus brief, cite Joyce v. Slager, a case in which I successfully moved under the Anti-SLAPP statute for the dismissal of a defamation action against my clients, a newspaper and its publisher.

Click here for a link to the Webcast of the SJC argument.

Bottom line: Hollander should prevail in her appeal.

Nothing in the statue precludes its application to individuals or entities engaged in commerce. As Harvey S. Shapiro, counsel for Hollander, noted in his argument, the commercial context of Hollander's petitioning activity pales in comparison to the commercial nature of defendants in cases where the statue has been applied.

Second, nothing in the statute precludes the application of the statue to journalists or the media. If such a limitation is to be imposed--which I would argue it should not--it should be done by the legislature, not the courts.

Some of the questions from the bench seemed to suggest that if the Court acknowledged the application of the anti-SLAPP statue to journalists, then defamation law would be tossed aside.

Not so.

In arguing for a dismissal under the statute, a moving party first must establish that its conduct at issue in the defamation claim was petitioning activity. The opposing party then has the opportunity to show that the petitioning activity was devoid of any reasonable factual support or any arguable basis in law, and that the moving party’s acts caused actual injury to the opposing party. If the opposing party sustains that burden, then the special motion to dismiss will be denied, and the defamation case may continue.