News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Supreme Judicial Court to Revisit Anti-SLAPP Standard

MA-SJCEarlier this month, the Supreme Judicial heard a case regarding the standard for “Anti-SLAPP” motions. As we have written before, Massachusetts’ Anti-SLAPP law protects people who have engaged in protected speech from lawsuits based on that speech. The statute allows defendants to move to dismiss a lawsuit against them “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Anti-SLAPP motions are particularly important for employees who report illegal and unsafe conduct; those employees need assurances that they will not face retaliatory and costly lawsuits targeting them for their speech.  

The Anti-SLAPP statute provides a means to seek dismissal of a legal claim that is based solely on a party’s “right of petition under the constitution of the United States or of the commonwealth.” The statute instructs that the plaintiff can defeat a motion to dismiss under the Anti-SLAPP suit by showing : (1) the defendant’s exercise of its right to petition didn’t have any basis in fact or law and (2) the defendant’s acts caused actual injury to the plaintiff. 

Since the statute’s passage, courts have grappled with the countervailing constitutional rights at issue when a party files an Anti-SLAPP motion. As the Supreme Judicial Court explained in 2017 in a case called Blanchard, the target of an Anti-SLAPP motion – typically, a plaintiff – also has a constitutional right to use the courts to petition. An Anti-SLAPP dismissal can “potentially infringe” on an “adverse party’s exercise of its right to petition, even when it is not engaged in sham petitioning.” To balance these interests, the Blanchard Court adopted an “augmented framework” for evaluating Anti-SLAPP motions. Under Blanchard, the person filing the Anti-SLAPP motion must demonstrate that it is facing a legal claim based “solely” on its “petitioning activities” and not some other basis.  

Once the person filing the motion has made this showing, the burden shifts to the non-moving party who has two means of defeating the motion. This is where the Blanchard Court broke new ground. First, the plaintiff can prove the standard from the statute as set forth above: that the petitioning activity at issue was a sham and caused the non-moving party injury. That much was consistent with the statute and prior law. But the Court added a second avenue for defeating an Anti-SLAPP motion: a plaintiff can now also defeat a motion by demonstrating that its legal claims were not brought to chill the moving party’s “legitimate petitioning activities” and that the plaintiff’s “motivating goal in bringing litigation was not to interfere with petitioning rights but to seek damages for harm it sustained because of the moving party’s actions.” 

Since Blanchard, courts have struggled to apply this standard. As the Appeals Court noted last year, “[t]here is an inherent difficulty and, in some cases, prematurity in requiring a judge to make credibility determinations and discern a party’s primary motivation [at an early stage without] a more complete evidentiary record scrutinized through cross-examination.” In other words, without any kind of evidence or factual record, it is hard for a judge to speculate on a plaintiff’s motivations.   

Now the Court must decide whether to alter this framework. In Columbia Plaza Associates v. Northeastern University, a development group is suing Northeastern for allegedly lying to the Boston Planning and Develop Authority about Northeastern’s legal right to develop a parcel of land. Columbia Plaza claims that Northeastern misrepresented facts to the Authority in order to move ahead with a development plan and renege on a prior promise to develop that land with Columbia Plaza. Northeastern filed an Anti-SLAPP motion claiming that its representations to the agency were protected petitioning activity. The lower court ruled that Northeastern was engaged in petitioning activity and Columbia Plaza brought its lawsuit to chill that activity. The question for the Supreme Judicial Court is how to determine whether Columbia Plaza can proceed with its lawsuit. (The Columbia Plaza Associates case was heard in conjunction with Bristol Asphalt Co. v. Rochester Bituminous Products, Inc., a case about development rights that raised similar issues with the Anti-SLAPP statute).  

The SJC asked the public to weigh in via amicus briefs on whether it should revisit the standard for assessing Anti-SLAPP motions. Multiple groups urged the court to abandon the Blanchard framework all together. As the Massachusetts Employment Lawyers (MELA)  and its co-authors argued in their brief, employees who raise concerns about unlawful conduct are often at risks for retaliatory lawsuits. The current Blanchard framework, according to those amici, has “created a confusing, unpredictable, and unworkable set of standards, which continuously need updating and clarification.” By focusing on the intent of the non-movant, the Blanchard framework creates a new requirement that has no connection to the text of the Anti-SLAPP statute and makes it much harder for movants to prevail in the manner the statute intended. Other amici – including the ACLU of Massachusetts, the New England First Amendment Coalition, and real estate development groups – agreed with MELA and its co-authors, arguing that the augmented framework is unworkable in practice, is untethered from the language of the statute, and threatens to chill speech. In sum, amici argue for a return to a simple analysis grounded in the text of the statute – and one that would preserve the rights of those who speak out and petition against unlawful activity. Whether the court agrees remains to be seen. But the consensus among interested parties is that Blanchard is unworkable. That is especially true for workers whose opponents are powerful institutions, and who need clarity about protections before they petition.  


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