If at first you don't succeed?

In 2006, when confronted with an anti-SLAPP defense motion, rabbi Mordechai Tendler withdrew subpoenas to Google, in which he sought the identity of anonymous bloggers who had commented on his dismissal from a New York synagogue over allegations of sexual relations with members of the congregation.

He's back ...

Public Citizen reports on its Consumer Law & Policy Blog that the "Randy Rabbi" is back, once again armed with a subpoena aimed at discovering the identity of the same anonymous bloggers.  

Tendler obtained a liability judgment against the synagogue that dismissed him, and now claims that he needs to know the identity of the anonymous bloggers to gather evidence in support of his damages claim against the synagogue.

The Public Citizen blog piece has a link to a page it maintains about the subpoena efforts, including a link to the memo in support of a motion to quash the subpoena, which was filed recently in a New York trial court by the Public Citizen Litigation Group on behalf of the anonymous bloggers.

The bases of the motion to quash are that Tendler failed to comply with a New York state procedural requirement that he state the reasons why the disclosure he seeks is warranted, and because enforcement of the subpoena would violate the bloggers' First Amendment rights.

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.

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.