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.

First Circuit brings home the bacon for Fox media defendants

In Levesque v. Doocy (No. 08-1814) the U.S. Court of Appeals for the First Circuit last month affirmed the district court's grant of summary judgment in behalf of the media defendants--Fox News Network and two individual anchors for the Fox & Friends program--in a defamation and false light case brought by a superintendent of schools in Maine.

In short, the case arose from an April 2007 incident at a Maine middle school, where a student placed a bag of ham on a cafeteria table where Somali Muslim students were sitting. A producer for Fox & Friends subsequently picked up an online story (published via Associated Content) about the incident and the reaction by school officials. That story included certain mischaracterizations and humorous references, which made it through the Fox producer's fact-checking process and found their way onto the air.

In affirming the district court decision, the court agreed with the district court's conclusion that even as to three statements (including the erroneous attribution to the plaintiff of a comment that "ham is not a toy") that were "materially false, reasonably susceptible of a defamatory meaning, and highly offensive for purposes of the false light claim," the plaintiff (a public official) failed to produce evidence that the defendants had acted with "constitutional malice" when making the statements.

The district court had determined that other statements were protected on multiple grounds, such as being substantially true or constituting protected rhetorical hyperbole.

The opinion by the First Circuit provides a good discussion of the Times v. Sullivan actual malice standard that applies to defamation claims by a public official.

"Public criticism of public officials"

That is how renowned media lawyer Bruce Sanford, from the Washington, D.C., office of Baker Hostetler, appearing on behalf of the Boston Herald before the Massachusetts Supreme Judicial Court this morning, characterized the subject matter of the reporting at issue in the Herald's appeal of the 2005 $2 milllion libel award to Superior Court Judge Ernest Murphy.

And that is exactly right.

While the judicial climate in the SJC courtroom was not as frigid as the weather outside, my impression is that the Herald's arguments were met with something cooler than a warm welcome.

Justice Cowin, in particular, focused repeatedly on the words "tell her," which she said changed the gist of the reported statements. Sanford, however, viewed those words as immaterial and insignificant, and commented that applicable law does not require reporters and sources to agree precisely. He also noted that none of the reporter's [district attorney] sources ever contacted the paper to say that he was misquoted.

While acknowledging that the reporter may have made one or two technical mistakes in his stories, Sanford emphasized that such mistakes do not equal substantial falsity.

Sanford also cautioned that under the standards of Times v. Sullivan, appellate judges are not charged with being "superannuated editors."

Arguing for Murphy, Suffolk Law School professor Michael Avery referred to what he called the reporter's knowing fabrications, and essentially argued that whatever the standard of review, there is overwhelming evidence to support the jury's decisions in favor of Murphy.

In posing questions to Avery, Chief Justice Margaret Marshall noted that her own research showed that on appeal few libel awards in favor of public officials, and judges in particular, are upheld on appeal.

Let's hope that is a harbinger of the Court's decision in this case.