North End reporter, Fredda Hollander, lost her appeal to the Mass. Supreme Judicial Court (SJC) to dismiss a defamation lawsuit made against her by Steven Fustolo, a North End developer. Hollander sought protection under the Massachusetts anti‑SLAPP statute (Strategic Lawsuits Against Public Participation) which allows a party to have a case dismissed at an early stage in the litigation if the lawsuit is based on his or her “exercise of [the] right of petition under the constitution of the United States or of the Commonwealth.”
The SJC ruled on February 1, 2010:
“In sum, we conclude that Hollander has failed to satisfy her threshold burden to show that the articles on which Fustolo’s suit is based constitute an “exercise of [her] right of petition under the constitution” as the phrase is defined in § 59H. Accordingly, the judge correctly denied Hollander’s special motion to dismiss.”
Notably, this ruling does not settle the original defamation case, nor does it pass judgement on the merits of either side of the lawsuit. The SJC ruling means that the original defamation case now continues in Superior Court which could go to trial.
The lawsuit involves allegations of defamation based on several articles Hollander wrote for the Regional Review, a free local newspaper serving the North End community in Boston. The articles in question reported on development activities planned by plaintiff Steven Fustolo and meetings of community groups that opposed his plans. Hollander, a long-time resident and member of the North End/Waterfront Residents’ Association (NEWRA), is also the editor, and writer for the North End News which she founded after leaving the Regional Review. The North End News halted publishing a little over one year ago.
In his complaint, Fustolo alleged that as a result of Hollander’s articles, widespread neighborhood opposition developed in connection with two of his projects, as a result of which Fustolo was felt compelled to withdraw applications for variances then pending before the Boston Zoning Appeals Board.
The anti-SLAPP measure for dismissal of the lawsuit was previously denied by the lower Superior Court and then appealed to the higher Massachusetts Supreme Judicial Court where the case was heard on November 2, 2009. Attorney Harvey Shapiro represented Hollander and Bruce Edmands (with Sandy Shen) represented Fustolo. (View the video of the arguments in front of the SJC.)
The SJC made two additional observations as part of its ruling indicating, (1) the minimal compensation paid for writing the articles was not a factor and (2) defamation law “provides reporters with protection for both opinions and, of probable greater relevance to this case, for fair reports of public meetings of both government bodies and organizations such as NEWRA.”
“First, the motion judge (ed: lower court judge) based her denial of Hollander’s special motion to dismiss in part on the fact that Hollander was compensated for her work as a Regional Review reporter. The judge stated that “the financial benefit [Hollander] received from the Regional Review’s publication of her articles constitutes a private reason for her reporting on North End neighborhood committee meetings [and] Fustolo’s complaint would thereby not be based on her petitioning activities alone….” We disagree that the compensation Hollander received disqualifies her articles as protected petitioning activity. The record offers little support for a finding that Hollander wrote the articles because she was paid to do so, and in any case, speech may constitute protected petitioning activity even if it “involves a commercial motive.” North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 863 (2009). Our analysis would not change if Hollander had written the same articles, pursuant to the same instructions from the publisher, as a volunteer reporter.”
Finally, Hollander points to the important role that reporters and the press historically have played in our democracy in exposing issues of public concern and encouraging or sparking necessary governmental scrutiny. A determination that she is not entitled to the protection of § 59H for her acts of encouraging community participation in this case, Hollander argues, “runs the risk of undercutting or stripping the anti-SLAPP statute of a significant portion of its value.” We disagree. To the extent that Hollander fears a chilling effect on reporters and the press if they are not entitled to claim the protection of the anti-SLAPP statute in cases where they write about contentious issues of public concern, we note that the common law of defamation, with its constitutional overlay, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides reporters with protection for both opinions and, of probable greater relevance to this case, for fair reports of public meetings of both government bodies and organizations such as NEWRA. … “the scope of the statute has its limits.” Kobrin, 443 Mass. at 336. There is no reason to stretch the anti-SLAPP statute beyond its appropriate boundaries in order to create a level of protection for reporters beyond that to which they are currently entitled under the existing defamation law.