Massachusetts Supreme Court Revamps Speech Retaliation Approach

People hit with retaliatory lawsuits after exercising their First Amendment rights are expected to face a simpler process for defeating meritless cases, under a revised framework the Massachusetts Supreme Judicial Court issued Thursday.

The justices altered their criteria for applying the state’s anti-SLAPP law—which seeks to prevent what are known as strategic lawsuits against public participation—in two opinions over a land dispute and a permitting disagreement. The law is meant to create a quick and cheap way for courts to throw out meritless lawsuits that were filed to retaliate against people for exercising their First Amendment rights.

The guidance aims to narrow the types of meritless claims that should be thrown out, make it less expensive for litigants to bring or defend against special motions to dismiss and ease the burden on judges deciding those motions.

The revisions come after employment lawyers, free speech groups, and business attorneys urged the Supreme Judicial Court to make the process simpler. Changes the court made in 2017 and 2019 had left the process incomprehensible, justices said during oral argument.

“A simplification of our existing anti-SLAPP framework, and one that hews to the statutory language, is necessary to ensure that the legislative intent behind the statute is not undermined by its misapplication,” the justices wrote in the opinion in Bristol Asphalt Co. Inc. vs. Rochester Bituminous Products Inc., one of the decisions laying out the new framework.

Revised Process

Defendants who want retaliatory lawsuits thrown out must file a special motion to dismiss—a “procedural vehicle” that is “intended to secure the early dismissal of a meritless SLAPP claim, along with attorney’s fees, before significant discovery has occurred,” the justices said.

“The special motion to dismiss is strong medicine,” so safeguards are necessary to make sure it is only applied in the appropriate context, the court said.

Defendants must demonstrate that the claims against them are “‘based on’ the [party’s] petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities” to get a lawsuit dismissed through a special motion, the opinion said.

If the defendant meets that burden, the special motion to dismiss moves on to a second stage of analysis, where the burden shifts to the motion’s opponent. The opponent must show that the petitioning activity in question “is devoid of any reasonable factual support or any arguable basis in law” and caused an actual injury.

In Bristol, a legal challenge related to Bristol Asphalt’s attempt to build a concrete plant, the justices said Bristol met its burden of showing Rochester’s petitioning was a sham, and affirmed the rejection of Rochester’s special motion to dismiss.

In Columbia Plaza Assoc. Inc. vs. Northeastern Univ., a case stemming from a disagreement over a plot of university-owned land that developers claim they have some control over, the Supreme Judicial Court affirmed the allowance of Northeastern’s special motion to dismiss.

Broad Approach

The complexity of anti-SLAPP case law stems from the Legislature’s “broad conceptualization” of the sort of First Amendment rights the law is meant to protect, the court said. The statute takes an expansive approach to protecting “a party’s exercise of its right of petition,” which has been applied “beyond the original problem it aimed to correct,” it said.

The Supreme Judicial Court had previously tried to “more precisely protect petitioning and more clearly permit other lawsuits not based on ‘classic’ petitioning activity to proceed” by amending the framework to require judges to take a closer look at individual claims, but that change proved to be burdensome for courts.

The justices had also created a second pathway in the framework that allowed plaintiffs to avoid having their lawsuits thrown out if they convinced a judge that their claim wasn’t a meritless SLAPP case brought to chill free speech. But that pathway was also problematic, making the process more time consuming and straying from the legislature’s intent for the statute, the opinion said.

The latest opinions eliminated the requirement that judges interrogate individual claims, as well as the second pathway.

The cases are Columbia Plaza Assoc. Inc. vs. Northeastern Univ., Mass., No. SJC-13405, 2/29/24 and Bristol Asphalt Co. v. Rochester Bituminous Products Inc., Mass., No. SJC-13460, 2/29/24.