| Subgrades | |
| Covered Speech: | D |
| Anti-SLAPP Procedures: | C+ |
| Subscores | |
| Covered Speech: | 30 out of 100 points |
| Anti-SLAPP Procedures: | 70 out of 100 points |
| Detailed Scoring on Anti-SLAPP Procedures | |
| Suspension of Court Proceedings Upon an Anti-SLAPP Motion: | 18 of 20 points |
| Burden of Proof on Plaintiff to Defeat an Anti-SLAPP Motion: | 12 of 12 points |
| Right to an Immediate Appeal: | 0 of 25 points |
| Award of Costs and Attorney Fees: | 40 of 40 points |
| Expansive Statutory Interpretation Instruction to Courts: | 0 of 3 points |
How to Improve Massachusetts’s Score
The most important part of anti-SLAPP law is the scope of speech that the statute covers. After all, strong statutory procedural protections are of no help to a speaker if the scope of the statute excludes the speech at issue.
The fundamental flaw in Massachusetts’s anti-SLAPP statute is it covers too little speech. If Massachusetts simply expanded the scope of its statute to cover the same kinds of speech recommended by the Uniform Law Commission’s model Act, the overall grade would rise to A-.
The Uniform Law Commission’s model law protects any speech about a matter of public importance in any forum. The model is described at some length in the full report and is available here.
Massachusetts should also consider including a right to an “interlocutory” appeal as part of its law. Speaking generally, that is a request to a higher court for it to decide a particular issue immediately. In most litigation, interlocutory appeals are difficult to obtain, so this right of appeal is an important feature of an anti-SLAPP law. Without it, a defendant who loses an anti-SLAPP motion would be forced to continue to litigate the entire trial before the finding on the motion could ever be appealed.
As attorney Ken White has eloquently explained, the provision of a right of interlocutory appeal creates a strong protection for First Amendment liberties, because it “dramatically reduces the coercive effect of filing a lawsuit targeting speech.”
State Anti-SLAPP Statute
Massachusetts’s anti-SLAPP statute protects “any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any 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; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.” Massachusetts case law has underscored that the protection of the anti-SLAPP statute does not typically extend to statements that are unrelated to the right of petition;[1] indeed, Massachusetts courts have narrowed the application of the statute by holding that an anti-SLAPP respondent may defeat the motion by showing that its claim was not “brought primarily to chill” the movant’s right to petition.[2] Although discovery is stayed once an anti-SLAPP motion is filed, a court may nonetheless order specified discovery to be conducted if good cause is shown. To prevail against an anti-SLAPP motion, the respondent must show that (1) the movant’s expressive actions were devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party. The statute contains no provision for interlocutory appeal of an order on an anti-SLAPP motion. A court must award costs and attorney fees to the prevailing movant on an anti-SLAPP motion.
[1] The state’s anti-SLAPP statute was held not to apply in a defamation case against a journalist, because the journalistic articles at issue “did not contain statements seeking to redress a grievance or to petition for relief of her own.” Fustolo v. Hollander, 455 Mass. 861, 920 N.E.2d 837 (Mass. Feb. 1, 2010). See also Islamic Soc’y of Boston v. Boston Herald, Inc., in which statements opposing the construction of a mosque were held not to be “petitioning activity,” and therefore outside the bounds of the anti-SLAPP statute, because the statements were directed at media entities and not at a government body. 21 Mass. L. Rep. 441 (Mass. Super. Ct. July 20, 2006).
[2] Blanchard v. Steward Carney Hosp., 477 Mass. 141, 75 N.E.3d 21 (Mass. May 23, 2017); see also Cadle Co. v. Schlichtmann, 448 Mass. 242, 859 N.E.2d 858 (Mass. Jan. 17, 2007), in which the court refused to allow anti-SLAPP application in a case involving online comments, which were found to be motivated by a commercial goal of attracting new clients.
