Superior Court dismisses defamation case against opponent of racetrack gambling

Decision protects citizen activism via social media.

Monday, December 17, 2012

Christopher Ott, Communications Director, 617-482-3170 x322,

BOSTON -- In a case that attracted outrage earlier this year, Judge Patrick Brady of the Norfolk Superior Court today dismissed a lawsuit brought by Plainridge Racecourse against TJ Keen, who has publicly opposed the expansion of gambling at the racetrack. The racetrack claimed it was defamed by Facebook postings and statements on a website Keen helped to set up, which contained information about the relationship between gambling and crime.

The American Civil Liberties Union of Massachusetts supported Keen, arguing in his defense that the lawsuit aimed to silence critics of the plan and that Keen's speech was protected. Judge Brady agreed that the defamation lawsuit was based solely on his exercise of the right to petition the government, and that the racetrack could not sustain its burden of proof to recover for protected "petitioning activity." Under the "anti-SLAPP" law (strategic lawsuit against public participation), the racetrack will be required to pay Keen's reasonable attorneys' fees.

"This decision reinforces the anti-SLAPP law by applying it squarely to the world of social media," said ACLU cooperating attorney Jeffrey Pyle, of Prince Lobel Tye LLP. "Residents of Massachusetts should know that their social and political organizing is protected, whether they do it on Facebook, Twitter, or anywhere else."

"The ACLU helped get the anti-SLAPP statute passed in the 1990s to protect people like TJ Keen who are willing to participate in local affairs. With the judge tossing out the raceway's lawsuit, we hope that others in the community will not be frightened away from getting involved in debating community issues," said Sarah Wunsch, staff attorney for the ACLU of Massachusetts.

"I'm happy that the court has affirmed affected citizens' right to petition and make their voice heard in these community-changing debates. Residents should not be intimidated or bullied by deep-pocketed firms looking to quash their dissenting voice. Perhaps this whole situation calls into question whether Plainridge Racecourse should be trusted with the rights to operate a slot parlor in Plainville if legal action is their idea of 'communicating with the public' when the public disagrees with their position," said Keen.

Owners of the Plainridge Racecourse sued Keen for allegedly defaming them through his opposition to the addition of slot machines to the racetrack's facilities. The ACLU of Massachusetts rose to his defense, calling the action an unjustified SLAPP suit that should immediately be dismissed.

Keen was one of several Plainville residents who have publicly opposed expanded gambling at the track and urged other residents to voice their opposition to local officials. The opposition has mentioned that gambling operations are associated with increases in neighborhood crime. "Ourway Realty," which does business under the name Plainridge Racecourse, sued Keen in June, seeking damages and an injunction forbidding further discussion of the relationship between the racecourse and crime.

Ourway's lawsuit referenced, a website Keen set up in April to try to rally public opposition to the racecourse's casino plans. The site urges residents to contact their local officials and urge them to oppose the plans for the racino (a combined racetrack and casino).

Shortly thereafter, a burglar broke into Keen's home, and Keen's security system captured the alleged intruder's image. Keen forwarded the image to the Plainville Police Department, which posted it to its Facebook page along with a plea for information on the suspect. The image and message were then shared on the opposition group's website. A different Facebook user, posting under a pseudonym, then commented under the picture, "I wonder if they checked over at the racetrack, lol."

The racetrack sent a threatening letter to Keen, vowing a lawsuit. The joking comment was removed, but Ourway sued nonetheless, seeking an order to prevent Keen from posting any more "references to crime associated with... [Ourway's] operations or intended operations," such as the proposed slot parlor.

The state "anti-SLAPP" law requires the immediate dismissal of lawsuits like this, so that little burden is placed on people who have been sued for their "petitioning activity." Under the law, petitioning activity includes any advocacy having a reasonable factual basis that seeks to educate the public and to get people to contact the government. A party that brings a SLAPP suit must pay the attorney's fees for the person sued, once the case is dismissed. Keen's statements about crime rates and casinos are backed up by substantial scientific studies, and Keen has never alleged that Ourway was involved in the burglary of his home. Ourway's suit, accordingly, was meritless.

"If a third party's joking Facebook post could be the basis for a lawsuit, then courts wouldn't have time for much else," said Matthew Segal, ACLU of Massachusetts legal director.

The case is Ourway Realty, LLC v. Thomas Keen, Norfolk Superior Court No. 2012-00963.

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