Anti-SLAPP Alert: Those are (not) fighting words.
The Supreme Judicial Court today issued its opinion in Van Liew v. Stansfield, SJC-11905, another anti-SLAPP decision. This time, the Court reversed a district court judge's allowance of a special motion to dismiss under the anti-SLAPP statute filed by former Chelmsford Selectwoman sued for abuse of process and malicious prosecution after she sought (and obtained, temporarily) a harassment prevention order under G.L. c. 258E, section 3.
The SJC concluded that the special motion should not have been allowed because the defendant met his burden of showing that the alleged petitioning activity (seeking the harassment prevention order) was devoid of factual support and caused Van Liew actual injury.
The case arose out of a dispute between a Chelmsford planning board member, Colleen Stanfield, and, at the relevant time, a candidate for Chelmsford Selectman, Roland Van Liew. The two had history: Van Liew was active in the community and often disagreed publicly with Stanfield's positions.
When Van Liew ran for Selectman, he held a public "meet and greet," which Stanfield attended (she admitted, to "rattle Van Liew's cage"). During the meeting, Stanfield challenged publicly many of his positions. At the end of the meet and greet, Standfield approached Van Liew and asked him if he planned to participate in upcoming debates. Standfield claimed Van Liew threatened her ("I'm coming after you.") and that Stanfield told him he was "looking at a restraining order." Van Liew says he did not threaten her, but told her not to send anymore anonymous letters to his wife, to which, he claims, Stanfield responded, "you need a restraining order."
Stanfield promptly spoke to police and filed a request for a harassment prevention order under G.L. c. 258, section 3 in the District Court. An ex parte temporary order issued. At a full hearing, Van Liew testified as to her version of what occurred at the meet and greet, and identified a couple of instances in which Stanfield had called her "corrupt and a liar" and other names ("uneducated" and "stupid"). The court concluded the requirements of chapter 258, section 3 had not been met, that the speech at issue was political speech, and was not threatening in any way, and vacated the temporary order.
Van Liew filed suit against Stanfield asserting claims for abuse of process and malicious prosecution. Stanfield filed an anti-SLAPP motion, which the district court allowed (finding that she had been sued based on petitioning activity and that Van Liew had not met his burden to show the petitioning activity was devoid of reasonable factual basis). Van Liew appealed to the Appellate Division, which reversed, finding Van Liew had met his burden, and remanded for trial. Stanfield appealed to the Appeals Court, and the SJC transferred the cases on its own motion.
The Court first addressed the procedural issues of whether a party appealing the allowance of an anti-SLAPP motion can file an immediate appeal directly with the Appeals Court - answer: yes.
The Court noted that it had previously ruled in Fabre v. Walton in 2004 that regardless of where the case was commenced (which department of the trial court), a trial judge's denial of a special motion could be appealed directly to the Appeals Court. Citing concerns about "certainty, uniform treatment of similarly-situated litigants, and consistent development of the law relating to the anti-SLAPP statute," the Court confirmed that "any party in a case pending in the District Court who seeks to appeal from the denial or he allowance" of an anti-SLAPP motion "should file the appeal directly in the Appeals Court . . ."
With respect to the merits of the special motion, the Court disposed of the first prong of the anti-SLAPP analysis quickly, noting that there was no dispute that the the defendant Stanfield met her burden since Van Liew's complaint focused solely on her application for a harassment prevention order, which the anti-SLAPP statute cover.
With respect to Van Liew's burden to show that the petitioning activity was devoid of factual support and that it caused him actual injury, the Court looked at the requirements under chapter 258, section 3. It noted that the statute defines "harassment" as "three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property that does in fact cause fear, intimidation, abuse or damage to property." The court noted that this definition was crafted "to exclude constitutionally protected speech," and to limit the categories of constitutionally unprotected speech to two: "fighting words" ("must be a direct personal insult addressed to a person, and they must be inherently likely to provoke violence") and "true threats" ("direct threats of imminent physical harm").
The Court found that none of Van Liew's alleged words constituted fighting words or direct threats within the meaning of chapter 258, section 3, that they were largely political speech, and otherwise insufficient to constitute harassment. And "because Stanfield failed to present three or more acts of harassment, she was not entitled to a harassment prevention order." Van Liew thus met his burden to show that her request for such an order was "devoid of any factual support or any arguable basis in law" despite that a judge originally granted the request temporarily, given that the order was vacated after a full hearing that was the first time Van Liew was heard. Facts insufficient to support the order could not be cured by the fact that judge originally entered a temporary order.
Van Liew also met his burden to show the petitioning activity caused him actual injury, as he was required to hire a lawyer and to incur fees and costs.
Read our other anti-SLAPP alerts.