Anti-SLAPP Alert: A blog post is petitioning activity. Another case of bad facts make bad law?

The SJC yesterday ruled in Cardno ChemRisk, LLC v. Foytlin that a blog post qualified as petitioning activity under the Massachusetts anti-SLAPP statute. While this is not the first time* the Court has immunized as petitioning activity conduct that looked more like First Amendment speech than petitioning, the decision seems to open the door for even more anti-SLAPP litigation by those engaged in online and other public speech about issues of potential public interest.

The case stemmed from a 2013 blog post authored by two environmental activists that appeared on the Huffington Post blog. The post criticized BP and one of its experts, ChemRisk, for scientific data and opinions ChemRisk presented in the multi-district federal lawsuit against BP stemming from the 2010 oil spill disaster, particularly ChemRisk's opinions that the spill was far smaller than alleged (1.7 million barrels smaller) and that exposure to cleanup workers was below permissible limits set by OSHA.

ChemRisk sued the authors of the blog post for defamation in state court in Massachusetts, and the activists filed anti-SLAPP motions to dismiss (as well as typical failure to plead motions to dismiss). A Superior Court judge denied the anti-SLAPP motions, citing the SJC's earlier decisions in Kobrin v. Gastfriend, Fustolo v. Hollander, and Fisher v. Lint, and concluding that the blog post "did not concern or seek to advance the defendants' own interests, but rather those of the cleanup workers."

On appeal, the SJC took the case up on direct appellate review and reversed. The Court ruled that the blog post constituted petitioning activity, explaining that it fell into at least one of the "enumerated definitional categories" in the statute, and that the post's authors were petitioning for themselves.

First, the Court explained that the post "formed part of the defendants' ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and it close[d] with an implicit call for its readers to take action." So, the Court concluded, without more discussion of any of its past decisions or the context in which it has found and rejected claims of petitioning activity, "[t]he article falls squarely within the second clause of the statute," namely that it is a statement reasonably likely to enlist "public participation." In addition, because it was written "against the backdrop" of the MDL, referred to that litigation and the actions of one of BP's experts in the case, the Court concluded it also "may" be a "statement made in connection with an issue under . . . review by a . . . judicial body." (But what of Wynne v. Creigle, the "mirror image" rule, and the limitations the appellate courts have placed on protections for statements to the press?).

The SJC also disagreed with the Superior Court judge and found that the post's authors were sufficiently speaking for themselves and advancing their own interests to qualify as petitioning activity. The Court distinguished Kobrin (as involving a contracted government expert witness), Fisher (as involving a government employee) and Fustolo (as involving a journalist tasked with objectively reporting on the news), and concluded that unlike the defendants in those cases, the activists and authors here had their own independent interest in their cause (much like the bird expert in Baker v. Parsons). The Court explained that "[n]othing [in the history of the statute or constitutional petitioning] suggests that the right of petition protected by the anti-SLAPP statute is limited to seeking redress of purely personal grievances."

Concluding that the defendants met their burden to show the claims against them were solely based on their petitioning activity, the burden shifted to ChemRisk to show, by a preponderance of the evidence, that their petitioning activity was devoid of reasonable basis in fact or law - a burden, the Court ruled, ChemRisk did not seriously attempt to meet.

The Boston Globe reported on the decision today, which, as reflected in the Globe article, has been heralded by some as important to protect petitioning rights of those demanding or opposing government action at this particular time. But while the end result - dismissal and protection of the activists' speech - are certainly laudable, one cannot help but wonder if the Court here heeded its own constitutional warning in Duracraft Corp. v. Holmes Prods. Corp., or its own acknowledgment that our anti-SLAPP statute (unlike some in other states) extends to petitioning, but not to all first amendment conduct.

And while it is difficult to argue with the fact that the blog post in ChemRisk should be protected by the First Amendment, using the petitioning clause and the anti-SLAPP statute to immunize it opens the already wide anti-SLAPP door even more. The opinion seems result oriented and without recognition of how broadly it will be read, used and applied. The litigation within litigation the anti-SLAPP statute creates is already rampant and the ChemRisk decision only promises to increase the number of motions filed - meritorious or not.

The risk in the anti-SLAPP context is all on the claimant/non-moving party because attorneys fees are only available to a prevailing movant (and not to a party who successfully opposes such a motion), and the precedents are far from consistent and far from clear. Of course, ChemRisk ultimately lost because it did not meet its own burden to show the challenged statements in the blog post were devoid of reasonable basis in law or fact, and the Court explained that ChemRisk did little to meet its burden in this case. Perhaps the problem is that while this analysis works in ChemRisk, in general, it is little consolation for a non-moving party that it might escape dismissal by making this showing given the preponderance standard, the early stage at which the showing must be made, the lack of a jury to make credibility and factual findings, and the way the SJC has interpreted the standard to date.**

So we have another anti-SLAPP decision from the SJC, but like many of the anti-SLAPP decisions before it, the actual line drawn by ChemRisk and how it will be applied in the future remains unclear and to be seen.

*For example, the Court has previously ruled that a website that operated like an electronic "town green" to which third parties could contribute content qualified as petitioning activity in Macdonald v. Paton, but a website created by a lawyer who criticized a collection company and sought clients to join the lawyer as a party and to hire him to represent them did not qualify as petitioning activity in Cadle v. Schlichtmann.

**For more on this, read Benoit v. Frederickson and cases following it, or check out my earlier blog post here. In federal court, Judge Young has ruled that the preponderance standard and the second prong of the analysis as interpreted by our state courts, would violate the Seventh Amendment right to trial by jury for claims typically afforded a jury in federal court. The same problems exist but have not been acknowledged in state court under article 15 of the Massachusetts Constitution. <<Read More>>

***And for those wondering, this blog post is, of course, intended to be petitioning activity as it seeks to affect and effect government action - namely for the courts or the legislature to clarify the statute's application, to do so in a manner that actually ensures the statute does not impinge too much on competing constitutional (petitioning, jury trial, due process, etc.) rights and to create a disincentive for litigants to use the statute as a litigation tactic when it does not really apply, all while, of course, protecting the sacred petitioning right the statute seeks to protect. Godspeed.

#SJCWatch #antiSLAPP #petitioningactivity #antislapp

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