Public Law

Updates on Public Law in Massachusetts from Anderson & Kreiger LLP


Public Officials Must Bear Public Criticism

The Anti-SLAPP law does not protect Public Officials from damages they may cause in seeking harassment protection orders to thwart public criticism.

One situation in which Anti-SLAPP laws won’t help public officials.

If in office long enough, most public officials experience at least some degree of criticism from the public. But what happens when the public official thinks the criticism has gone too far?

The Supreme Judicial Court (SJC) has recently held that a local public official cannot get a valid harassment prevention order based only upon public criticism, without some threat of harm, even if that criticism is vociferous and unpleasant in nature.

Remarks by a politically-active resident (now running for office himself) about an elected official (here a Planning Board member) were not harassment, in the eyes of the Court. Instead, it found that they constituted political speech and were “at the core of the speech that the First Amendment to the United State Constitution protects.”

And, in fact, the SJC went on to declare that a counter-suit for malicious prosecution and abuse of process by the subject of the temporary harassment prevention order was not a SLAPP suit and, thus, the Anti-SLAPP statute does not protect the public official, who may be liable for damages to the resident.

The Anti-SLAPP Statute

Over half of the states have enacted so-called anti-SLAPP laws, which is an acronym for “strategic lawsuit against public participation”.

The idea behind them is to protect less powerful parties (e.g., a citizen’s group) against litigation by powerful parties (e.g., a large corporation) whose sole purpose in filing the lawsuit is to intimidate and silence critics by burdening them with litigation costs.  For example, a corporation might sue a citizens group for slander to get the group to drop its allegation that it violated environmental regulations.

In Massachusetts, the law (G.L. c.231 §59H) protects “the right to petition,” which generally means any speech before a governmental body.  It works by allowing parties who believe a claim has been wrongfully lodged against them because of their “petitioning activity” to make an expedited motion to dismiss that claim (known as a “special motion to dismiss”).

The party accused of a SLAPP has the burden to prove that the accuser’s “petitioning activity” had no “reasonable factual support” or “arguable basis in law,” and that they sustained “actual injury” from the petitioning activity in order to overcome the special motion to dismiss.

The Case: A Fight Between Local Political Figures Spins Out of Control

In this case, the “petitioning activity” was the request by the town planning board member for the District Court to grant a harassment prevention order against the politically active town resident.  In the application, the planning board member alleged instances of harassment, including that the town resident had publicly called her “corrupt and a liar,” and that he insulted her over the phone before she joined the planning board.

The town planning board member received a temporary order ex parte prohibiting such comments by the other town resident, but the District Court vacated that order after a full hearing.

The resident then sued the planning board member, alleging that her attempt to get a harassment prevention order against him constituted abuse of process and malicious prosecution.  The planning board member moved to dismiss these claims under §59H.

The resident had to show that the planning board member’s harassment prevention order had no reasonable factual or legal basis and that he suffered actual injury, in order for his claims to survive.  The district court judge ruled against him, and dismissed the suit as a SLAPP under §59H.

However, the resident then appealed the §59H dismissal to the Appellate Division, which sided with him, reinstating his suit for abuse of process and malicious prosecution.  The planning board member then, in turn, appealed the Appellate Division’s denial of her motion to dismiss to the Appeals Court.  The SJC took the case up on its own motion.

Protected Speech: The SJC Says There is a Right to Criticize and That Attempts to Quell That Public Criticism May Subject Public Officials to Liability

After the tortured procedural path to its door, the SJC ultimately found that the planning board member’s special motion to dismiss under the Anti-SLAPP statute failed because her alleged “petitioning activity” – the harassment order – had no reasonable basis in fact or law.

The “harassment” she alleged by the resident was, according to the Court, political speech “at the core of the speech that the First Amendment” protects, or else mere “insults” that “failed to qualify as fighting words or true threats.”  Such statements were not a valid basis on which to issue a temporary harassment prevention order.  And because the “petitioning activity” did not have a valid basis, the resident’s counter-suit for malicious prosecution was not a SLAPP suit.

So, the SJC essentially found his claim to be potentially valid, not just a vehicle to intimidate the planning board member from seeking harassment prevention orders.  Thus, the §59H special motion to dismiss the malicious prosecution claims should have been denied.

In addition, the Court clarified a few procedural points.  It ruled that appeals of decisions concerning §59H special motions from any trial court, including the District Court, should go to the Appeals Court, not the Appellate Division, in order to ensure consistent development of this statute.  It also held that proof of costs incurred defending against a §59H motion (such as attorneys fees) is sufficient to make out the statute’s “actual injury” prong to overcome the presumption in favor of dismissal.

The case is Van Liew v. Stansfield (March 30, 2016).

Image CreditJason Hargrove

About the Author

Nina L. Pickering-Cook – Partner

Nina helps public and private sector clients navigate issues relating to real estate, construction, land use and public law, including litigation where necessary.

Posted In: First Amendment

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