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.”

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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.

View the entire decision and discussion by the SJC (pdf)

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12 COMMENTS

  1. For Fredda and Bill’s sake, I’m sorry to see this decision come out this way, but while I was watching from the chamber, I saw trouble ahead for this appeal. The justices were really focusing on distinguishing Fredda as a journalist from someone who is a citizen conducting petitioning activity. Cordy at one point asked the question, whether the article in question was printed in the Review would be regarded as petitioning, while if it had been published in the Globe would be journalism.

    This came down to the SJC’s reluctance to extend another protection to journalists. Right now, they are shielded by defamation/1st amendment law, while non-journalist citizens who are sued for defamation have only the anti-SLAPP to take shelter behind. The SJC seemed to focus on preserving a separation between the two areas of law.

    This would have brought a merciful end to the case, and would have saved Fredda and Bill a lot of money, but it’s not fatal to the underlying defamation case. Journalists have fairly broad speech protections that could prevail back in Superior Court. I’m just sorry Fredda and Bill can’t put this whole thing behind them and get on with their lives.

  2. It is unfortunate that the SJC did not give reporters protection under the anti-SLAPP statute. This narrowing of its scope is likely to be harmful to open debate regarding public issues. Massachusetts needs to adopt the California provision in its version of anti-SLAPP that protects reporters’ "free speech" rights.

    I don’t know the Hollander, but I wish her well and thank her for pursuing this case. It sounds like she has a pretty good defense against the defamation case.

  3. FREDDA HOLLANDER: BEARING WITNESS, SPEAKING TRUTH TO POWER

    The Supreme Judicial Court’s refusal to dismiss the defamation suit against Fredda Hollander in Fustolo v. Hollander [SJC-10485] under the state’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute is hopefully only a temporary setback in obtaining the ultimate dismissal of a case which has chilling implications for neighborhood advocates, community newspapers and people who care about the fate of the place that they call home. In a past fundraiser for her legal defense, Fredda’s and her husband, Bill Lee’s contributions to the North End were publicly acknowledged and inscribed by their friends and neighbors.

    None of us, who have witnessed this couple’s valiant struggle as expenses mounted for litigation and the launch of their North End News Weekly, will soon forget their humor, optimism and grace under fire. What happened to them could have happened to any of us. They currently have no abode to hang the plaques which bear the following words:

    The Tough-As-Nails Award
    for Excellence in Journalism

    In solidarity and support
    of our favorite rogue reporter,
    Fredda Hollander, who through
    her unwavering courage, persistence
    and diligence has helped to preserve
    America’s oldest neighborhood.
    Despite intimidation, she has courageously
    stood up to bullies and their efforts
    to silence public discourse.

    She has earned the affection and
    gratitude of her friends and neighbors
    in Boston’s North End.
    ________________________________________

    The Supportive Spouse Award
    for Loyalty in a Time of Adversity

    To Bill Lee for his steadfastness
    and devotion to his wife and dearest
    comrade, as well as for his advocacy
    as a private citizen on behalf of
    his neighborhood. His perseverance
    and hard work have made the North End
    a better place in which to live.

    His friends and neighbors
    acknowledge his dedication with gratitude.

  4. In our imperfect system, justice has prevailed once again. Hey Fredda, I like you, but this case was a no-brainer. Even the SJC ruled unanimously against you.

  5. I have been following this case since inception and find it fascinating. Although I understand that the ANTI SLAPP law is supposed to protect neighborhoods against developers, I do not see where this law applies to the reporter.

    There are already the standard defenses associated with defamation cases. I say let the case go on and both parties make their arguments. If the reporter did not defame the developer, she will win. If not, she will lose and will have to pay damages. That is the American justice system.

    As for this issue about the reporter paying legal fees, it goes both ways with the developer too having to fund his/her legal fees.

    I look forward to seeing how this case plays out in the courts. RJ

  6. Hi Nic.,

    The SJC decision did not address the substance of the libel allegations. All the decision means is that the civil case will now proceed pursuant to the Rules of Civil Procedure and the current libel laws. The articles were fair and accurate and, therefore, there was no libel.

  7. How can anyone think there is a level playing-field between deep-pocketed developers who retain lawyers as a business expense and neighborhood reporters who operate on a shoestring? It is true that a reporter will almost always win a libel suit in the end but it costs thousands of dollars to get to that point. The Anti-SLAPP statute is a way of ending these cases at an early stage and shifting the costs to developers who have traditionally initiated these cases for their harassment value. Excluding local reporters from its protection does not promote coverage of issues which may be controversial but are of importance to neighborhood residents. Nevertheless, while the corporate interests may have won this round, North End residents will continue to petition for their rights – it’s our historic tradition!

  8. Hi Fredda,

    If, as you say, the articles were "fair and accurate, and, therefore, no libel," why were you trying to have the SJC halt the progression of the case? If you are correct, then you will have nothing to fear and justice will prevail. I have been a fan of yours, but I think that your case before the SJC was a "stretch."

  9. Hi Fredda,

    If, as you say, the articles were "fair and accurate, and, therefore, no libel," why were you trying to have the SJC halt the progression of the case? If you are correct, then you will have nothing to fear and justice will prevail. I have been a fan of yours, but I think that your case before the SJC was a "stretch."

  10. Dear Ms. McGee:

    I am puzzled as to why you note the following: "Why would anyone think that there was a level playing field between deep-pocketed developers, who retain lawyers as a business expense and neighborhood reporters who operate on a shoestring." The SJC was not asked to render an opinion based upon issues of class warfare, which you imply, but rather, whether reporting the news constituted a petitioning activity under Anti-S.L.A.P.P.
    Your futher injection of class warfare into this case (as well as your obvious disdain for anyone living above the poverty level) is evidenced by your assertion of the reason you state why Anti-S.L.A.P.P. was created "….shifting the costs to developers who have traditionally initiated the cases for their harassment value." From what I’ve read here, as well reading the SCJ’s opinion in its entirety, it is a clear that the developer had initiated the case because he (and from what I hear, others within the local legal community) believe that he was defamed by the news reporter. Nowhere in this case matches up with your assertion that this developer initiated this case for "harassment value." If anything, it looks like the case was initiated (in the lower courts) to clear his name from a series of alleged untruths in the reporter’s articles.

  11. Above: "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."

    Sure, Fredda is the sole cause of widespread neighborhood opposition. What a racket!

    What I want to know are the specific statements the developer alleges to be defamatory, incorrect or otherwise a breach of legal discourse in journalism. That anyone feels compelled to walk away from the licensing board due to neighborhood opposition is nothing new.

    Can we see what the developer had a specific issue with? Or is it this amorphous vague blob of feeling the developer has?

    Until I see FALSE statements that caused DAMAGE, I don’t side with a developer. Perhaps this developer could take another look at why there was widespread opposition that led him to back away from AN APPEAL.

    My word!!

  12. “Class warfare” twice in one post – wow! And in the North End/Waterfront of all places! I think it’s time to adjust the filters, Matt – there’s an outbreak of hyperbole. The fact remains that the anti-SLAPP (Stategic Lawsuit Against Public Participation) statute was passed in response to a developer’s lawsuit against a group of local residents who opposed one of his projects and this is exactly the type of suit the statute is intended to protect against. Its protections may not have been extended to journalists but its protections are still very much available to residents who take issue with something that is happening in their neighborhood.

Comments are closed.