The diminished utility of anti-SLAPP motions
Massachusetts’ so-called “anti-SLAPP” statute, G.L. c. 231, § 59H, presents a constitutional puzzle. The statute bars strategic litigation against public participation (SLAPP), i.e., a claim or “lawsuit brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Before the Supreme Judicial Court’s decision in Blanchard v. Steward Carney Hospital Inc., 441 Mass. 141 (2017), the statute required a court, on motion, to dismiss claims that the moving party demonstrated were “based on” petitioning activity, unless the non-moving party proved that the petitioning activity underlying the claim was a “sham,” i.e., “devoid of any reasonable factual support or any arguable basis in law,” and caused harm to the non-moving party. This was the framework adopted by the SJC in Duracraft v. Holmes Prods. Corp., 427 Mass. 156 (1998). As the SJC has long acknowledged, however, that valid petitioning activity can cause harm, too. In such a case, the injured party’s constitutional right to seek redress in the courts is no less important than the constitutional rights of the petitioning party.