In Cardno ChemRisk v. Foytlin, the SJC Slaps Down Attack on Protected Speech

At a time of increasingly public protests, the Supreme Judicial Court recently reaffirmed its commitment to protecting speech here in Massachusetts.  Under Masschusetts’s Anti-Strategic Litigation Against Public Participation law (“Anti-SLAPP”), defendants can move to dismiss a lawsuit filed against them if that lawsuit targets their attempt to influence a government body or seek help from one.   It had always been clear that when a person attempts to influence the government on their own behalf – in other words, to vindicate their own interests – the statute protected that activity.  But in Cardno ChemRisk v. Cherri Foytlin et al., the Court made clear that the statute extends to citizens’ right to advocate not just for themselves, but also for others.

Massachusetts is one of twenty-eight states with Anti-SLAPP protection.  These statutes buttress a basic constitutional right:  The First Amendment of the United States Constitution protects the right “to petition the Government for a redress of grievances.”  That means that every person has a right to influence government bodies – by, for example, protesting in the town square or testifying at a hearing – without fear of reprisal.  But citizens’ protests can often frustrate powerful, non-governmental interests.  And when they do, those powerful interests may use courts to try to stop or stifle the speech.  Anti-SLAPP statutes protect citizens from those suits.

Cardno ChemRisk was a classic example of this dynamic.  ChemRisk provided British Petroleum (“BP”) with an assessment of the toxic effects of the company’s oil spill in the Gulf of Mexico in 2010.  Environmental activists believed that report vastly underestimated the damage to Louisiana’s coast.  Two such activists published a blog post in the Huffington Post in which they alleged that ChemRisk used unscientific data and criticized BP and ChemRisk for attempting to minimize BP’s responsibility for environmental harm resulting from the oil spill.  The post charged ChemRisk with “a long, and on at least one occasion fraudulent, history of defending big polluters using questionable ethics to help their clients avoid legal responsibility for their actions.”  The authors hoped the post would encourage regulators and courts to treat ChemRisk’ s report with a skeptical eye.  Outraged by the criticism, ChemRisk sued the authors for defamation in state courts in Massachusetts and New York, and sought millions of dollars in damages.

Here is how Massachusetts’ Anti-SLAPP statute protected the two bloggers from costly litigation that they could not afford to fight:  Because ChemRisk’s complaint targeted the author’s attempt to influence a public debate, the authors filed a “special motion to dismiss” under the statute which, if granted, would end the litigation at an early stage.  That means the authors would not have to defend against costly and long discovery, or an eventual trial.  In order to prevail on an anti-SLAPP motion to dismiss, under M.G.L. c. 231, § 59H, a defendant must prove that she has been sued solely because of some form of “petitioning activity” taken to influence a government body.  The burden then shifts to the plaintiffs bringing the lawsuit, who must prove that the statement or activity was “devoid of any reasonable factual support or any arguable basis in law.”  In other words, the citizen’s speech had to have been so truly unfounded and frivolous that no person could have honestly believed it.  If the plaintiffs cannot meet that high standard, their suit is dismissed.

In Cardno ChemRisk, the plaintiffs argued that the statute only protects petitioning people engage in to advance their own interests. Unlike most defendants in Anti-SLAPP litigation, the two authors of the Huffington Post article were not trying to advance their own interests, but were advocating for people living on the Gulf Coast and directly affected by the oil spill.  ChemRisk argued that the activists did not fall under the statutes protections for precisely that reason – the activists were trying vindicate other people’s rights to petition, not their own.  The judge who heard the case in the Superior Court agreed, and denied the motion on that basis. The Supreme Judicial Court rejected the lower court’s reasoning.  The Court explained that the right to petition “has been a fundamental aspect of liberty for the better part of 1,000 years: first to petition the King, then Parliament, then the colonial Legislatures, and finally the institutions of our own government.”  The activists attacking ChemRisk’s report were part of that long tradition, one that encourages citizens to “advance causes in which they believe.” The Court also noted that although the statute requires the defendant to be exercising their own right to petition, nothing in the statute or Constitution requires the petition at issue to be solely about “personal grievances.” Thus, the Court held that the Anti-SLAPP statute extended to “nonself-interested petitioning on behalf of the environment.”

Cardno ChemRisk represents an important step forward for those who believe in First Amendment rights:  At least in Massachusetts, citizens are free to speak out on behalf of others without fear of being sued and dragged into costly and time-consuming litigation for exercising their Constitutional rights.