Peter Robbins, author of the Robbins Report, a blog that appears on the popular community website Cape Cod Today, and an anonymous commenter have been sued over statements they made criticizing a group of Barnstable, MA residents who opposed the dredging of Barnstable Harbor.  The case raises a host of interesting questions, including whether the statements at issue are protected opinions and the potential applicability of Massachusetts' anti-SLAPP and retraction statutes.

The dispute arose over a March 11 post by Robbins entitled Barnstable Harbor: Filling in and falling in, in which he criticized a number of individuals, including Joseph Dugas and his lawyer Paul Revere III, who had challenged orders issued by the Town of Barnstable Conservation Commission and Massachusetts Department of Environmental Protection that authorized dredging in Barnstable Harbor (not surprising for a community that is so intimately tied to the water, dredging in the harbor is quite a controversial topic). 

Robbins' original post -- which has since been edited (more on this later) -- lamented the poor condition of Barnstable Harbor and its bulkhead, asserting that much of the blame for the town's failure to fix the problems was due to legal challenges filed by local residents. Robbins wrote:

In my opinion this, NIMBY, frivolous, malicious action is doing nothing but stalling the inevitable and costing us the taxpayers unnecessary time and money. . . . So when you run aground this summer, or bend that prop trying to get in or out of Barnstable Harbor at low tide, these are the people who are costing you . . . ." 

Robbins went on to name the people he claimed had challenged and thereby delayed the dredging, including Dugas and his lawyer, who Robbins described as "Paul (the dredge isn't coming) Revere III."

On July 7, 2008, Dugas and Revere filed a defamation lawsuit against Robbins and "John Doe," an anonymous commenter on the site who posted under the pseudonym "Noggin."  Plaintiffs' complaint alleges that the following statements by Robbins were false and defamatory:

• A reference to Dugas as “the infamous sh*t stirring Joe Dugas."
• A description of Revere as “Paul ‘the dredge isn’t coming’ Revere.”
• The assertion that the "actions of Dugas and others represented by Revere with regard to the 'litigation' were malicious and not brought in good faith."
• The claim that the reason the harbor wasn’t being dredged was because of the plaintiffs’ legal challenges.

Dugas and Revere also alleged in their complaint that a pseudonymous user named "Noggin" posted the following defamatory comments on Robbins' blog:

• "In the Town of Barnstable, 'if you don't genuflect and pay off Joe Dugas, you may as well forget whatever you want to do."
• "There are plenty of shysters like Revere to climb aboard . . ."

On August 29, 2008, Robbins filed a special motion to dismiss the complaint pursuant Massachusetts' anti-SLAPP law, M.G.L. c. 231, § 59H.  The motion gives us a bit more background on the dispute, including information about edits that were made to the post in an effort to avoid the instant litigation.  Before we delve into the details of Robbins' motion, however, let's break this case down and see whether the plaintiffs actually have a viable defamation claim against Robbins and "Noggin" in the first place. 

Under Massachusetts law, in order for a publication to be defamatory it must contain a false statement of fact that discredits the plaintiff "in the minds of any considerable and respectable segment in the community." Phelan v. May Dept. Stores, 443 Mass. 52, 56 (2004).  The gravamen of a defamation claim is falsity.  Statements of pure opinion, which cannot be proven true or false, cannot form the basis of a defamation claim.  See King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987). (For more information on Massachusetts defamation law, see our legal guide.)

Obviously, Robbins' reference to Dugas as "the infamous sh*t stirring Joe Dugas" and his description of Revere as "Paul (the dredge isn't coming) Revere III" are statements of pure opinion.  After all, how do you prove either of these statements is true or false? Noggin's comment that "if you don't genuflect and pay off Joe Dugas, you may as well forget whatever you want to do," also strikes me as pure opinion because it cannot be proven true or false.  

The remaining statements are more problematic.  The assertion that Dugas and Revere's "actions with regard to the 'litigation' were malicious and not brought in good faith" and that this is the reason the harbor wasn't dredged could be interpreted to imply false verifiable facts (e.g., that Robbins had factual information showing that Dugas and Revere acted in bad faith when they appealed the dredging orders).  Noggin's statement that "[t]here are plenty of shysters like Revere," while it could be understood as implying that Revere engages in illegal activity, seems less problematic because the word "shyster" (although derogatory) is a colloquial, loosely defined term that wouldn't likely convey that Revere had in fact engaged in criminal behavior.  Cf. McCabe v. Rattinger, 814 F.2d 839, 842-43 (1st Cir. 1987) (holding statement describing plaintiff's real estate development as a "scam" was protected opinion because "the lack of precision makes the assertion 'X is a scam' incapable of being proven true or false"). 

While it isn't always easy to determine whether a statement is capable of a defamatory meaning, courts will look at the context of the statements to determine how a reasonable person would interprete them.  For example, a statement is more likely to be regarded as an opinion if it occurs in an editorial blog as opposed to a piece of investigative journalism.  In a similar, but not entirely analogous, case in Massachusetts, real estate developer Paul McMann sued the anonymous operator of an Internet "gripe site" about him that contained a photograph of McMann with the statement that he "turned lives upside down," and a warning to "be afraid, be very afraid." The court held that these statements -- taken in context -- were statements of opinion.  McMann v. Doe, 460 F.Supp. 2d 259, 270 (D. Mass. 2006).

Even assuming that Dugas and Revere are able to establish all of the necessary elements of their defamation claim, their complaint must still survive Robbins' motion to dismiss under Massachusetts' anti-SLAPP statute.  SLAPP stands for "Strategic Lawsuit Against Public Participation" and refers to lawsuits filed in retaliation against the target's speaking out on a public issue or controversy.  SLAPPs are typically brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions. To guard against the chilling effect of these lawsuits, twenty-six states have some form of anti-SLAPP law. (For information on SLAPPs and the various state laws that protect against them, see our legal guide.)

Under the Massachusetts statute, a party may file a special motion to dismiss if a complaint has been filed against it as a result of the party's "exercise of its right of petition under the constitution of the United States or of the commonwealth."  M.G.L. c. 231, § 59H.  A court must grant such a motion and award the defendant his or her attorneys' fees and court costs unless it finds that the party’s exercise of its right to petition "was devoid of any reasonable factual support or any arguable basis in law" and "the moving party’s acts caused actual injury to the responding party."  Id.  

The statute defines the "right of petition” to include written or oral statements that are

• "made before or submitted to" a government body;
• "made in connection with an issue under consideration or review" by a government body;
• "likely to encourage consideration or review of an issue" by a government body; 
• "likely to enlist public participation in an effort to effect such consideration" by a government body; or
• "any other statement falling within constitutional protection of the right to petition government."

Note that the anti-SLAPP statute does not protect "free speech" in the abstract, but only statements that fit within the five categories outlined above. Nonetheless, a good deal of online speech could fit into these categories, especially if it is aimed at influencing government policy or encouraging public participation in order to influence government policy.

Robbins' statements on his blog fit within the statute's definition of petitioning activity because his statements are "likely to enlist public participation in an effort to effect" consideration of the dredging orders issued by the Town of Barnstable Conservation Commission and Massachusetts Department of Environmental Protection.  Even a cursory review of the Robbins Report shows that his blog provides a forum for citizens to express their views on the dredging issue and on other topics of public and political concern.

While the statute does not expressly apply to speech activity on blogs, Massachusetts courts have interpreted petitioning activity to include some online publishing activities. For example, in MacDonald v. Paton, 782 N.E.2d 1089 (Mass. App. Ct. 2003), Elsa Paton operated a website that reported on local affairs in Athol, Massachusetts and the surrounding community. Mark MacDonald, a former Athol selectman, sued Paton and others after a local newspaper published an article referring to him as a "Gestapo agent," and Paton published a user-submitted "dictionary entry" for the term "Nazi" that referenced MacDonald. A Massachusetts appeals court held that Paton's publication of the statement was "petitioning activity" within the meaning of the anti-SLAPP statue because "the Web site served as a technological version of a meeting of citizens on the Town Green, a space where concerned individuals could come together to share information, express political opinions, and rally on town issues of concern to the community."  MacDonald, 782 N.E.2d at 1093-94.

As I noted previously, many of the statements the plaintiffs claim are defamatory were removed from Robbins' blog.  According to Robbins' motion to dismiss, six weeks after the blog post appeared, Revere allegedly contacted Walter Brooks, Editor and Publisher of Cape Cod Today, requesting that certain information be deleted.  "Revere then discussed specific words and phrases that he and his client took objection to, and requested that those words and phrases be deleted from the post. Brooks agreed to each and every one of those deletions."  Robbins' lawyer also states in his motion that Brooks made one additional change at the request of Revere and that he made "all of the changes requested by Revere with the specific understanding that it was done in exchange for Revere’s assurance that litigation would not be brought against Cape Cod Today or its paid blogger, Peter Robbins." 

If the parties exchanged written correspondence on these changes, Massachusetts' retraction statute may preclude the plaintiffs from recovering punitive and exemplary damages.  In other words, Dugas and Revere would have to prove that the statements caused them actual injuries and they would be able to recover only for damages directly associated with those injuries.  

Under Massachusetts' retraction statute, Mass. Gen. Laws ch. 231, § 93, if within a reasonable time after receiving notice in writing from a plaintiff that he or she claims to have been libeled, the defendant makes a written offer of retraction and publishes a reasonable retraction, the retraction can be offered as evidence that the "alleged libel was published in good faith and without actual malice, and, unless the proof is successfully rebutted, the plaintiff shall recover only for any actual damage sustained."

Although the statute doesn't state whether it applies to online publishers, the legislature's use of the phrase "publication of libel" without limitation would seem to suggest that an online publisher is covered by the retraction statute.  If this issue is raised in this case (it doesn't appear to have been raised so far), I believe it would be the first case to address whether the Massachusetts retraction statute applies to a blog publisher and what types of changes qualify as a "retraction" in the online context.

Update: For more discussion of this case, which is garnering a lot of attention, see Dan Kennedy at Media Nation, Bob Ambrogi at Legal Blog Watch, and Walter Olson at Overlawyered. 

(You can follow further developments in the case by going to our legal threats database entry, Dugas v. Robbins.)