ACLU attorney Wunsch on the anti-SLAPP ruling

Sarah Wunsch, staff attorney for the ACLU of Massachusetts, e-mailed her thoughts on the state Supreme Judicial Court’s ruling that journalists are not protected by a state law prohibiting “strategic lawsuits against public participation” — also known as the anti-SLAPP statute. The Associated Press covers the ruling here. Background here. Below is Wunsch’s e-mail, presented in its entirety.

Despite our amicus brief urging otherwise, the SJC has affirmed Judge Hines’s Superior Court denial of the special motion to dismiss under the anti-SLAPP statute that had been filed by the journalist, Hollander, after she was sued by the developer, Fustolo. The unanimous opinion is written by Justice Botsford. Her opinion focuses on the fact that Hollander was not seeking to redress a grievance or to petition for relief of her own. She says, “As in Kobrin, the defendant’s conduct was not an attempt to redress a wrong he suffered, nor was he petitioning on his own behalf.”

Although the opinion says that a person is protected only if personally seeking redress of a grievance of his or her own, Justice Botsford distinguishes a case in which an attorney was given protection under the anti-SLAPP statute for his statements on behalf of his clients, and not for himself. To do that, she asserts that reporters occupy a different position with respect to a petitioning party than does the party’s attorney.

“There is nothing about the role or function of a staff reporter of an independent newspaper that by its nature renders the reporter a representative or agent of every, or indeed any, community organization that the reporter may cover,” particularly where the reporter denies representing a particular viewpoint. She contrasts this with Baker v. Parsons, where a biologist employed by an organization testified about her views and was protected by the SLAPP statute. (This reasoning seems to leave out of the equation whether the media outlet itself is the “petitioning party.” She seems to assume that it is only the community-based advocacy groups whose views the journalist is promoting.)

Thus, one of our concerns, that employees of advocacy organizations would not be protected by the anti-SLAPP statute, appears alleviated. Even if you are working for someone else as an advocate, as long as it is clear you are advocating for something, you should be protected.

Justice Botsford does reject the concept in Judge Hines’ opinion that because Hollander was paid, she had a private reason for her reporting, and was not sued for her petitioning alone. Being paid does not take a person out of the SLAPP protection.

Finally, Justice Botsford disagrees that this ruling will chill journalists. She cites New York Times v. Sullivan and the protection for reporters under that and under the fair-report doctrine.

As I read the opinion, a reporter writing news stories that are supposedly “objective” will not be protected by the SLAPP statute, despite the very broad definition of petitioning activity. If an editor or publisher wants to stir up the public to get them to support government action by focusing a series of news articles on the subject, too bad. No anti-SLAPP statute protection seemingly for the journalist despite the fact that the definition of petitioning includes this. I do not think this result is correct.

Under the Botsford decision, an opinion columnist is likely going to be protected by the anti-SLAPP statute, as is an employee of an advocacy organization. It seems that the concept of objective fair news reporting operates here to deprive news reporters of anti-SLAPP statute protection. One question is whether the newspaper publisher will be protected. The Botsford opinion talks about advocacy organizations but doesn’t seem to recognize that news media organizations can be advocacy organizations or be the “petitioning party” itself, engaged in activity that meets the definition of petitioning under the statute.

SJC rules against journalist-activist

Adam Gaffin has already posted some details on the state Supreme Judicial Court’s ruling earlier today against Fredda Holland, a journalist who claimed that a libel suit filed against her should be dismissed on the grounds that it was aimed at putting a halt to her community activism. Gaffin has posted the full decision as well.

Hollander, a former reporter for the Regional Review, had been active in a neighborhood association along with her husband, Bill Lee. She had used her platform at the Review to oppose plans by a North End developer named Steven Fustolo. When Fustolo sued her for libel, Hollander’s lawyer, Harvey Shapiro, argued that she should be protected by the state’s anti-SLAPP law, an acronym that means “strategic lawsuit against public participation.”

For background, click here. Disclosure: I was paid to write an affidavit (pdf) on Hollander’s behalf at an earlier stage of the case.

J.D. Salinger’s battle against free expression

J.D. Salinger, who died Wednesday at the age of 91, spent the last year of his life waging a wrong-headed battle against the fair-use exemption to copyright law, which allows for the use of copyrighted materials without permission under certain limited circumstances.

A Swedish humorist who goes by the name of J.D. California wrote a sequel to Salinger’s most famous work, “The Catcher in the Rye,” called “60 Years Later: Coming Through the Rye.” Salinger sued for copyright violation, even though parody is protected by fair use.

Last summer I gave Salinger a Boston Phoenix Muzzle Award for this outrage against free speech. I am, of course, under no illusions that Salinger ever knew or cared. What’s more disturbing is that the courts held up publication of “60 Years Later,” and that the case is still pending.

Let’s hope Salinger’s heirs drop the suit.

Good for speech, bad for democracy?

My heart is telling me one thing and my head another following the U.S. Supreme Court’s decision to remove political-speech restrictions on corporations and, by implication, labor unions.

On the one hand, I had been looking forward to this. I am close to being a First Amendment absolutist, and I gag instinctively at the idea that any form of political speech should be restricted, theories about corporate personhood aside.

On the other hand, we know what’s going to happen, don’t we? It’s bad enough that Congress can’t get health care right thanks to the doleful effects of corporate lobbying. And I do wonder why the Court had to overturn restrictions on corporations that extended back a century.

For the time being, I’m going to punt, and link to an article I wrote for the Boston Phoenix in 2003 on a corporate-speech case involving Nike.

An important libel ruling by the SJC

The state’s Supreme Judicial Court issued an important decision today that reaffirms protections for the news media against libel suits.

The case involved a town employee in Abington who was fired after sexually explicit images were discovered on his town-owned computer. The Enterprise of Brockton published a series of stories on official actions taken against the employee (who was eventually fired), based almost entirely on anonymous sources.

The SJC decision, written by Justice Robert Cordy, found that the fair-report privilege, which allows journalists to report libelous statements made in the course of official proceedings, applies even when those reports are based on anonymous sources.

Cordy also ruled that the Enterprise’s stories were substantially fair and accurate despite an error in one of the stories, and that the ex-employee could not sue the paper for intentionally inflicting emotional distress.

Those are the highlights. First Amendment lawyer Robert Ambrogi offers a deeper analysis here. The full text of the decision is here. (Via Universal Hub.)

State orders town to identify parking scofflaws

Here’s a good story idea: the Watertown Tab & Press wanted to publish the names of the town’s top 10 parking scofflaws. Town officials, you will not be surprised to learn, declined to turn over the information in its entirety. Now the state has ordered the town to cough up.

Picturing a $200 million high school

Those of you with good memories may recall that, last summer, Newton Mayor David Cohen barred the press from touring the city’s brand-new, $191 million Newton North High School. Later, he relented and allowed a reporter to take a look — but not a photographer.

Well, yesterday, as his time in office winds down to its final weeks, Cohen at long last allowed full media access to the school. The Newton Tab was even allowed to shoot a video.

Though it’s certainly positive that the press was finally able to take pictures, there was never any excuse for Cohen’s censorious behavior. The public deserved to see long before now what it was getting for the nearly $200 million it paid in tax money, either directly (through local property taxes) or indirectly (via state assistance).

Coakley gets it wrong on shield law

Martha Coakley

Bill Densmore has posted a crowdsourced Q&A with Massachusetts Attorney General Martha Coakley, a Democratic candidate for the U.S. Senate. (Disclosure: As you’ll see if you read it all the way through, I helped with one of the questions.)

I have not read the entire interview, but I did read her answer to a question about whether she would support a federal shield law to protect journalists who are ordered to reveal their confidential sources.

Coakley’s answer is troublesome, as she replies that she supports protection for “bona fide journalists.” I take that to mean card-carrying members of the mainstream media.

I am dubious of shield laws, and believe an absolute law would likely be ruled unconstitutional. At most, shield laws should require a judge to rule on whether a journalist’s testimony is necessary and if there might be some alternative way of getting the same information, as outlined by U.S. Supreme Court Justice Potter Stewart in the 1972 Branzburg v. Hayes decision. (Alas, Stewart was on the losing side, and his proposed balancing test has led a tortured existence.)

But whatever is protected, it ought to be journalism, not journalists. If an amateur blogger is engaging in journalism, then she should have just as much protection as a press-pass-wielding reporter. The test shouldn’t be who you are — it should be what you do.

Still more on SLAPP and libel

Excellent guidance from noted First Amendment lawyer Robert Bertsche.

ACLU lawyer explains libel and SLAPP

Sarah Wunsch, a staff attorney with the ACLU of Massachusetts, offers further analysis of how the state’s anti-SLAPP law would modify libel law if journalist-activist Fredda Hollander wins her appeal, now before the Massachusetts Supreme Judicial Court. (SLAPP stands for “strategic lawsuits against public participation,” and the anti-SLAPP law is aimed at preventing people from abusing the legal system by hauling activists into court.) Wunsch writes in part:

The defendant, the petitioner, may have made some misstatements that are harmful to the plaintiff’s reputation, but in order to give some breathing space to the right to petition, the law provides that as long as the petitioning wasn’t baseless, the SLAPP suit should be thrown out. Some people might think that is unfair but because society benefits when people aren’t afraid to get involved in local government issues, the statute gives them some extra protection.

To which I would add that though anti-SLAPP protection for journalists might offer them some extra protection against libel suits, the overall effect would probably be slight.

In most cases, I suspect, the person bringing the allegedly abusive suit (in Hollander’s case, North End developer Steven Fustolo) would be deemed a public figure. And under the U.S. Supreme Court’s 1964 Times v. Sullivan standard, a public figure can’t win a libel case unless he’s able to prove that the person he’s suing made false, defamatory statements knowing they weren’t true, or showing reckless disregard for the truth.

My standard disclosure: Hollander paid me to write an affidavit on her behalf at an earlier stage of her case.

Earlier coverage.