Democracy, Defamation, and Defining the Right to Petition: Slapping Some Sense into Anti-SLAPP Litigation

By Heidi Waugh

When I began drafting my Note, “See Ya in Boston, Bruh”: Making the Link Between the Right to Petition, Activism, and the Massachusetts Anti-SLAPP Statute, in September 2017, democracy was in the midst of a decade-long global recession.  According to the Economist Intelligence Unit’s Democracy Index, the United States’ democratic status was particularly precarious.  Plagued by high levels of distrust in political institutions and low levels of political participation, the United States dropped in rank from a full democracy to a flawed democracy—joining the ranks of over fifty countries, including Guatemala, Thailand, and Sierra Leone.

Heidi Waugh graduated summa cum laude from the Western New England University School of Law in May 2019.  She now works as an Assistant Appellate Court Attorney in the Legal Research Department at the New York State Supreme Court, Appellate Division, Third  Department. 

Fast forward to January 2019.  For the first time in three years, the global score for democracy is stable—studies indicate that globally, democracy’s retreat has reached its end, or at the very least, been put on hold. The United States, however, maintained its rank as a flawed democracy. The Economist Intelligence Unit cites political polarization and a lack of confidence in political institutions as the primary factors behind our nation’s ranking. Notably, and perhaps unsurprisingly, the United States witnessed an increase in political participation in 2018.  Although the upward trend in civic engagement failed to bump the United States back up to a full democracy, it reflects an important development: the public’s increasing willingness to engage in public protest through traditional means as well as through the use of social media.

Social media.  Facebook.  Instagram.  Twitter.  Snapchat.  Interactive, computer-mediated technological platforms that enable users to generate and share ideas via expansive virtual networks.  It’s truly incredible what you can find once you immerse yourself in this tangled web—the key to planning a one-day vacay, tips and tricks for putting your new juicer to use, the most effective air purifying plants, and even, the inspiration for a law review note.

We’ve all seen it.  Perhaps we’ve even been the one behind the keys at one point or another.  I’m talking about the impassioned political social media post.  I’m talking about Americans seizing the opportunity—in 280 characters or less—to speak out in support of a cause or against injustice.  I’m talking about social activism.  Social activism thrives at the intersection of virtual networks and America’s long-held tradition of civic engagement.  How, then, did the United States find itself demoted to a flawed democracy for low levels of political participation when scores of Americans are taking to social media, contending such platforms are critical for creating social change and accomplishing political goals?  Are Americans—from behind the screen—truly participating in the political process?  Might viral activism on social media amount to little more than slacktivism?

I had these questions in mind when I stumbled across the story of Cherri Foytlin and Karen Savage—two activists hit with a defamation suit after publishing a blog on Huffington Post.  The blog called Cardno ChemRisk, LLC, a scientific consulting firm, into question for issuing a report which claimed offshore cleanup workers responding to the Deepwater Horizon oil spill were exposed to negligible amounts of airborne chemicals.  Foytlin and Savage suggested that ChemRisk’s science was the result of truth-for-hire; after being haled into court, the pair successfully argued that they had been SLAPPed.

In the legal arena, a SLAPP is a Strategic Lawsuit Against Public Participation.  The typical SLAPP scenario consists of the following: a powerful entity files a frivolous action against an opponent with less resources in an effort to stifle political activity.  Often, these meritless suits are either dropped or dismissed—but the real damage is done outside of court.  Citizens’ willingness to openly engage in meaningful political activity is chilled by the fear of costly litigation.

In order to combat SLAPPs, Massachusetts enacted an anti-SLAPP statute.  The statute creates a special motion to dismiss that a party may file prior to any discovery.  In order to make use of the statute, a defendant must demonstrate that the plaintiff has filed suit on account of the defendant’s exercise of its right of petition.  The statute itself enumerates five categories of activities that constitute petitioning—in order to successfully invoke the special motion, you must show that your activity fits within one of the categories.  Massachusetts courts are charged with determining whether any given activity falls within the statute’s scope.

In Foytlin and Savage’s case—the focus of my Note—the Massachusetts Supreme Judicial Court (SJC) determined that the blog post in question was an exercise of the right of petition. I encourage you to read the opinion, Cardno ChemRisk, LLC v. Foytlin, 68 N.E.3d 1180 (Mass. 2017), and evaluate the SJC’s analysis.  In my Note, I argue that the court employed a conclusory method of analysis—one that marked a clear departure from prior Massachusetts anti-SLAPP jurisprudence, and one that threatens the vital importance of the connection between public political participation and engagement with the government. I argue that the SJC’s analysis revealed the potential for judicial interpretation of the anti-SLAPP statute to obscure the statute’s underlying policy objective of protecting a truly involved citizenry.

Using the Cardno ChemRisk opinion as a springboard, I explore alternative interpretative frameworks for determining the scope of petitioning activity.  Ultimately, I contend that in construing the definition of the right to petition, the SJC must objectively assess a statement’s content, its manner of issuance, and its proximity to government action. In the absence of an interpretive framework that takes such factors into account, I believe the SJC is bound to frustrate, rather than effectuate, the statute’s legislative intent—namely to promote and protect an involved citizenry. With the United States’ democratic rank stalled at flawed—despite an increase in political participation—it is critical that the right of petition be exercised before citizens claim the protections afforded by the Massachusetts anti-SLAPP statute.  I argue that classifying activities with attenuated ties to government as political participation threatens the core value at stake—a government by the people, for the people, and of the people.  The SJC’s construction of the definition of the right of petition is critical in this regard and my Note contends that the SJC must reevaluate its process of evaluation.

Read “See Ya in Boston, Bruh”: Making the Link Between the Right to Petition, Activism, and the Massachusetts Anti-SLAPP Statute in full here.

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