News Release
SJC Weighs Case on Rights of Journalists and Community Activists
ACLU supports reporter's appeal, argues community journalists should be protected under state "anti-SLAPP" law
FOR IMMEDIATE RELEASE
November 2, 2009
CONTACT:
Christopher Ott, Communications Director, 617-482-3170 x322, cott@aclum.org
BOSTON -- Today, the Supreme Judicial Court of Massachusetts heard an appeal by a journalist and neighborhood activist, Fredda Hollander, who was sued by a developer who claimed she defamed him in five statements she wrote in newspaper articles relating to government review of the developer's activities in Boston's North End neighborhood.
The American Civil Liberties Union of Massachusetts has joined with the Citizen Media Law Project and the Lawyers Committee for Civil Rights of the Boston Bar Association in filing a friend-of-the-court brief supporting Hollander before the state's high court, urging the Court to throw out the case against her.
A lower court judge denied Hollander's "special motion to dismiss" the lawsuit brought by developer Stephen Fustolo, ruling that because she was paid for her work by a community newspaper, the Regional Review, she was not protected under the state's "anti-SLAPP" (Strategic Lawsuit Against Public Participation) law, which was intended to protect the right to petition.
"We think that was an error," said Sarah Wunsch, ACLU of Massachusetts staff attorney, noting that the statute's definition of protected petitioning activity is very broad and includes speech aimed at bringing public attention to issues being considered by government bodies, to encourage government review of an issue, or which is likely to enlist public participation to obtain government review. Hollander's writings should be protected under those definitions, Wunsch said.
"The protections of the anti-SLAPP statute are very important in ensuring that people aren't frightened away by lawsuits when they get involved in community issues," said Paul Holtzman, attorney at the Boston law firm Krokidas & Bluestein, who helped author the ACLU of Massachusetts amicus brief. "Journalists and employees for advocacy groups play a key role in bringing attention to those issues, and they should be protected by the statute just like anyone else, even if they are paid for their work," Holtzman said.
The Massachusetts Anti-SLAPP statute, G.L. c. 231, § 59H, was enacted by the legislature in 1994 in order to help prevent lawsuits aimed at punishing people for exercising their freedom to petition the government. Enacted over two vetoes by Governor Weld and the vigorous opposition of real estate and business interests, the law is especially important because it provides that the SLAPP suits should quickly be dismissed if the petitioning activity was not baseless. In addition, the plaintiff must pay the attorneys fees of a SLAPP defendant who succeeds on a "special motion to dismiss." This provision has given considerable strength to the now-explicit statutory protection given to the First Amendment right to petition through the anti-SLAPP law.
The Preamble to 1994 House Doc. No. 1520 states the legislature's purposes:
"… The Legislature finds and declares that full participation by persons and organizations and robust discussion of issues before legislative, judicial, and administrative bodies and in other public fora are essential to the democratic process, that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, and that such litigation is disfavored and should be resolved quickly with minimum cost to citizens who have participated in matters of public concern."
The ACLU of Massachusetts was one of the main organizations that sought the passage of the anti-SLAPP law, after receiving pleas for help from people in a number of communities who had been sued after signing petitions seeking environmental review of developer plans.
The case heard today is Fustolo v. Hollander, No. SJC-10485. In addition to Wunsch and Holtzman, another attorney on the joint ACLU of Massachusetts/Citizen Media/Lawyers Committee brief is Christopher Bavitz, an attorney with the Cyberlaw Clinic at Harvard Law School which is affiliated with the Berkman Center for Internet & Society. Fredda Hollander is represented by Boston attorney Harvey S. Shapiro, who will be arguing for her before the court.
The ACLU amicus brief is available at:
http://www.aclum.org/legal/fustolo_v_hollander/amicus_brief.pdf
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