United States: Blogger-Journalist Protected From Defamation Suit By Anti-Slapp Statute

Last Updated: March 2 2017
Article by David A. Kluft

Are journalists protected by anti-SLAPP statutes?  Until last week, the likely answer would have been: "probably not," at least in Massachusetts.  But that was before Cardno Chemrisk, LLC v. Foytlin, a recent opinion by the Massachusetts Supreme Judicial Court (which we Bay Staters refer to as the "SJC"). The case involved a Huffington Post story about a chemical consulting firm involved in the Deepwater Horizon oil spill litigation. The case didn't answer every question a journalist might have about the protection available under the statute, but it was certainly a game changer for anyone who might reasonably be described as an "activist" or "opinion" journalist.  Hey bloggers: you especially ought to quit slouching in your desk chairs and take notice.

What is Anti-SLAPP Protection?

"SLAPP" stands for "strategic lawsuit against public participation," often defined as a meritless lawsuit brought in order to deter or punish a citizen for petitioning the government, in other words, for exercising his or her political or legal rights. The stereotypical example involves a citizen speaking out against a nearby housing development at a town zoning meeting, who is then sued by the developer for defamation; the citizen is discouraged from further speech whether or not what she had to say was true.  Anti-SLAPP statutes offer some protection against such suits, usually by providing for expedited dismissal and attorneys' fees. For a more complete discussion of the Massachusetts anti-SLAPP statute's history and parameters, see my Boston Bar Journal article from 2014.

What is Petitioning?

One of the most heavily litigated anti-SLAPP issues is the definition of "petitioning." The Massachusetts statute, Chapter 231, Section 59H of the Massachusetts General Laws, defines petitioning to include not just statements made directly to government bodies, but also those "made in connection with an issue under consideration or review" and those that are "reasonably likely to enlist public participation in an effort to effect such consideration." In the 2014 case of   Town of Hanover v. New England Regional Council of Carpenters, the SJC held that the anti-SLAPP protection extended not only to the citizens who were challenging a controversial expenditure of town funds, but also to a union who was working behind the scenes to provide organizational and legal support to the petitioning citizens.  This means that the law protects not only persons petitioning to protect their own private rights, but also those looking to "advance causes in which they believe."

But does it also extend to the journalists who write about that petitioning activity?  Put another way, can an article about petitioning activity also itself be petitioning activity?  If you read only the SJC's 2010 opinion in Fustolo v. Hollander and nothing else, you'd probably think the answer is "no."

Fustolo v. Hollander: Journalists are not petitioners . . .

Fredda Hollander was a resident of Boston's historic North End, and was actively involved in several nonprofits and advocacy groups that took positions on local zoning issues. She wrote some articles about her advocacy activities and submitted them to the Regional Review, a local newspaper.  The editors of the paper must have liked her style, because they hired her as a paid reporter.  In that capacity, Hollander covered many of the same issues in which she was also personally interested.  However, Hollander swore up and down (and in an affidavit) that, when it came to her reporting, she was trying to be objective and not share her personal views.

Some of Hollander's reporting involved the dealings of local real estate developer Steven Fustolo, as well as the community meetings (i.e., petitioning activity) in which those dealings were discussed. Fustolo, unhappy with the coverage, sued Hollander for defamation.  Hollander filed an anti-SLAPP motion to dismiss, claiming that her reporting was related to petitioning activity, and also that it was reasonably likely to enlist further public participation, and therefore should be protected by the statute.

But the SJC disagreed.  Hollander, in her role as a reporter, was not exercising her own petitioning right. As the court stated, her "articles did not contain statements seeking to redress a grievance or to petition for relief of her own." Rather, as a journalist she was trying to objectively report about other people seeking to redress their own grievances (notwithstanding the fact that she privately shared those grievances). Therefore, her articles were not petitioning activity, she was not entitled to bring an anti-SLAPP motion to dismiss, and she would have to defend the defamation suit. (You can find a nice tribute to Ms. Hollander, who settled the case in 2010 but then sadly passed away last year, at this link).

Cardno v. Foytlin: . . .except when they are.

Only a few weeks after the SJC's Fustolo opinion came out, a catastrophic explosion occurred at the Deepwater Horizon oil rig in the Gulf of Mexico, resulting in a massive oil spill, extensive cleanup efforts and a multi-district federal litigation based in Louisiana.

Cherri Foytlin is a resident of the affected region and full-time environmental activist. She has participated in numerous advocacy activities related to the Deepwater Horizon spill, including meeting with federal agencies and participating in public protests.

In 2013, Foytlin wrote an article (with some contributions from Karen Savage, an eighth grade math teacher residing in Boston) about the effects of the disaster and the cleanup efforts. The article appeared on the Huffington Post's "Green Blog."  Foytlin's byline stated that she was a "Gulf Coast based author and journalist."  The article included a discussion of the ongoing federal litigation, and criticized the ChemRisk company's role as an expert in that proceeding. Among other things, Foytlin wrote that ChemRisk has "a long, and on at least one occasion fraudulent, history of defending big polluters..."  The article closes by asking whether "anyone will ever . . . make [things] right."

In 2014, ChemRisk filed a defamation claim against the authors in Massachusetts.  The defendants countered with an anti-SLAPP motion to dismiss, arguing that the defamation claim was based on their petitioning activities.  The lower court judge, relying on the Fustolo opinion, denied the motion, and the defendants appealed.

As in Fustolo, it may very well have been the case that the article was likely to enlist public participation in petitioning activity. And, as in Fustolo, the case turned not on this issue, but on whether the defendants were exercising their own right of petition. Citing Fustolo, ChemRisk asserted that the defendants were merely reporting on the petitioning activity of others, not exercising their own protected rights.  This time, the SJC disagreed, finding that in this case, unlike Fustolo, the authors were exercising their own rights to petition.

Reconciling Fustolo and Foytlin

So, one activist/journalist article in 2010 is not protected by the anti-SLAPP statute. Another in 2017 is protected. Both sets of defendants held themselves out as "journalists" in connection with their work. What gives? Is it simply the case that the expanded view of petitioning activity set forth in Town of Hanover has overruled Fustolo? No. According to the SJC, Fustolo is still good law, just distinguishable.

What is the distinguishing feature? Is it money? No. Hollander, the reporter in Fustolo, was paid for her articles, and the defendants in Foytlin were not.  However, the Fustolo opinion expressly rejected compensation as the basis for its holding, and the Foytlin court makes no mention of the issue.

Rather, the distinguishing feature appears to be intent. The reporter in Fustolo had submitted an affidavit attesting to her attempts to be an "objective" journalist.  That objectivity, according to Justice Lenk, "was pivotal to [that] decision in so far as the reporter was not exercising her own constitutional right to petition when authoring the challenged article." Foytlin and Savage, on the other hand, emphasized that they were subjective bloggers. Citing the Merriam Webster dictionary, they argued that a "blog" by definition is a place where "someone writes about personal activities and experiences."  Justice Lenk's opinion does not expressly incorporate this argument, but it does hold that Foytlin and Savage were "speaking for themselves at their own behest" and as a natural extension of Foytlin's extensive activist efforts. Put more simply, because they were "advancing a cause in which they believed," the anti-SLAPP statute protected them.

Bloggers, Pay Attention

Where does that leave bloggers?  First, it's important to recognize that, while the SJC did indicate a willingness to extend Massachusetts anti-SLAPP protection to those who blog their opinions about public issues and petitioning activity (lawsuits, government, etc.), it did not necessarily adopt the defendants' argument that blogging is by definition a subjective petitioning exercise.

Second, it bears noting that in both Fustolo and Foytlin, the SJC was able to avoid making tough calls about the distinction between objectivity and subjectivity, because in both cases there appears to have been undisputed evidence of the authors' intent: Hollander said she was objective, Foytlin said she was not. Easy. What happens when this issue of objectivity is disputed, you ask? Good question.

Until more case law clarifies the landscape, all you bloggers out there who write about petitioning activity (lawsuits, government, etc.) will need to make your best guess about whether anti-SLAPP protection applies based on the presence or absence of indicia of subjectivity. This might include the context in which your articles appear; whether the content expressly calls for further action; how you have characterized your own writing in the past; and whether your writing is related to other more traditional activism in which you have participated.  Whether or not you call yourself a journalist, and whether or not you are paid, does not appear to matter. However, at least some professional journalists may have to choose between jettisoning the veneer of objectivity and giving up protection of the statute. If that doesn't seem fair to you media pros, look at it this way. You're no worse off than you were before last week.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
22 Aug 2018, Webinar, Boston, United States

After years of debate, the Massachusetts Legislature recently passed a comprehensive noncompete reform law, and Governor Baker signed the bill on August 10, 2018.

12 Oct 2018, Other, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions