On Friday, the Citizen Media Law Project joined with the Online News Association, Media Bloggers Association, New England Press Association, and Globe Newspaper Company, publisher of The Boston Globe and Boston.com, to submit an amici curiae brief  that argues that the Massachusetts anti-SLAPP statute applies to all parties, including members of the news media and professional bloggers, who engage in petitioning activities. 

The case involves a defamation lawsuit filed against Peter Robbins, author of the Robbins Report, a blog that appears on the popular community website Cape Cod Today, and an anonymous commenter on that blog.  The dispute arose over a March 11, 2008 blog post by Robbins entitled Barnstable Harbor: Filling in and falling in, in which he criticized a number of individuals, including plaintiffs Joseph Dugas and attorney Paul Revere III, who had challenged orders and permits issued by the Town of Barnstable Conservation Commission and the Massachusetts Department of Environmental Protection that authorized dredging in Barnstable Harbor.  (See my earlier post on the case for additional background.)

On August 29, 2008, Robbins filed a special motion to dismiss the complaint pursuant to Massachusetts' anti-SLAPP law, Mass. Gen. Laws ch. 231, § 59H.  (For general information on SLAPPs and the various state laws that protect against them, see our legal guide.)  In their opposition to Robbins' motion, Dugas and Revere argue that if Robbins is a member of the news media, he cannot invoke the anti-SLAPP law.  In addition, they argue that, because he receives compensation for his blogging activities, Robbins lacks a sufficient interest to qualify for protection under the law. 

We disagree with both assertions and, with the help of Harvard Law School's Cyberlaw Clinic, filed a "friend of the court" brief explaining why a compensated blogger would be entitled to the protections of the anti-SLAPP law regardless of whether he or she is characterized as a member of the news media.

Under the Massachusetts anti-SLAPP 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.

In our brief we note that the Massachusetts anti-SLAPP law does not limit the type of party that may bring a special motion to dismiss and that one court in the Commonwealth has already ruled that a newspaper article "falls squarely with[in] the protection of [the anti-SLAPP law] as a '. . . written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding.'"  Salvo v. Ottoway Newspapers, 1998 WL 34060940, at *2 (Mass. Super. May 13, 1998) (quoting Mass. Gen. Laws ch. 231, § 59H).  

The fact that Robbins receives compensation for his publishing activities also does not preclude application of the anti-SLAPP law.  Under the Massachusetts Supreme Judicial Court's holding in Kobrin v. Gastfriend, a blogger who is compensated for his work can still have a personal interest in an issue under governmental consideration sufficient to qualify for protection under the statute.  He or she can have a direct interest in a matter under governmental consideration; an interest in an issue as a member of the community directly affected by that issue; or an interest in informing the public and engendering discussion about issues of public concern.   

Moreover, in at least one case involving online speech, a Massachusetts appellate court applied the anti-SLAPP law to statements on a community website.  MacDonald v. Paton, 782 N.E.2d 1089 (Mass. App. Ct. 2003).  In that case, Elsa Paton operated a site 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. The 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.

If you would like to read our entire brief, it's located here.  A hearing on Robbins' motion to dismiss is scheduled for November 13, 2008 in Barnstable Superior Court.

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