Guideline 3:05B
Strategic Lawsuits Against Public Participation (“SLAPP”) are lawsuits designed to intimidate opponents’ exercise of rights of petitioning and speech and typically target people for certain constitutionally protected activities such as reporting violations of law, writing to government officials, attending public hearings, and testifying before governmental bodies. Where allegations in support of a c. 258E complaint potentially involve petitioning activity such as petitions to zoning boards, reports to social service agencies, or to the police, the judge should be cognizant of the provisions of G.L. c. 231, § 59H (“Anti-SLAPP” statute). The purpose of the statute is to protect a party’s exercise of its right to petition, which includes, in part, any written or oral statement made before or submitted to a legislative, executive, or judicial body. G.L. c. 231, § 59H. Where a plaintiff in a c. 258E petition asserts claims against the defendant based upon the defendant’s valid exercise of their right to petition, the defendant may file a special motion to dismiss pursuant to G.L. c. 231, § 59H.
The party seeking dismissal must demonstrate, through pleadings and affidavits, that the claims against it are based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities. If the only conduct complained of is petitioning activity, then there is no other substantial basis for the claim. If the moving party fails to make this showing, the special motion should be denied. If the moving party makes this showing, then the burden shifts to the nonmoving party to demonstrate, again by pleadings and affidavits, that “(1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party.” G. L. c. 231, § 59H.
If the court grants such special motion to dismiss, the court must award the moving party costs and reasonable attorney’s fees. Id.
Commentary
The legislative purpose behind the anti-SLAPP statute is “to protect parties from harassing lawsuits that have no basis in law and that are filed solely to discourage individuals from exercising their right to petition.” Cadle Co. v. Schlichtmann, 448 Mass. 242, 249 (2007). The right to petition may include “reporting violations of law, writing to government officials, attending public hearings, testifying before government bodies, circulating petitions for signature, lobbying for legislation, campaigning in initiative or referendum elections, filing agency protests or appeals, being parties in law-reform lawsuits, and engaging in peaceful boycotts and demonstrations.” Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156, 161-162 (1998) (citation omitted). As defined in the statute, “a party’s exercise of its right of petition” means,
“any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.”
A defendant may show qualifying damages by having to defend against an order based on legitimate petitioning activity, even if an order does not ultimately issue. See Van Liew v. Stansfield, 474 Mass. 31, 40 (2016) (where defendant obtained attorney to defend against order based on petitioning activity, evidence of attorney’s fees and costs were reasonable damages.) As such, even scheduling a hearing after notice may expose the plaintiff to liability in such circumstances.
In Bristol Asphalt, Co., Inc. v. Rochester Bituminous Products, Inc., 493 Mass. 539 (2024), the Supreme Judicial Court noted that a special motion to dismiss under G.L. c. 231, § 59H is “strong medicine”: “[i]t offers a party the prospect of having the claims filed against it dismissed — regardless of the merits of those claims and regardless that the filing of those claims is itself a petitioning activity — as well as a mandatory award of attorney’s fees, under a very favorable statutory standard: presumptive entitlement to dismissal, unless the opposing party can prove a negative.” Id. at 555. Thus, upon the filing of a special motion to dismiss, “to survive this first stage, the proponent must show that the challenged count has no substantial basis in conduct other than or in addition to the special motion proponent’s alleged petitioning activity. If the proponent cannot make the requisite threshold showing, the special motion to dismiss is denied. If the threshold showing is made, the second stage of analysis follows.” Id. at 555-556.
The SJC provided guidance on how to determine whether petitioning activity is “devoid of any reasonable factual support or any arguable basis in law” when assessing a special motion to dismiss in stage two. Id. at 557-558. “[M]aterial, disputed credibility issues may not be resolved in the special motion opponent’s favor” and thus, “the evidentiary support in favor of the special motion proponent’s petitioning activity must be quite limited” to be “devoid of any reasonable factual support.” Id. at 558 (internal citations omitted). “The legal basis for a special motion proponent’s petitioning activity likewise need only be ‘arguable’.” Id. “[W]hen the special motion opponent has submitted evidence and argument challenging the reasonableness of the factual and legal basis of the petitioning, a special motion proponent cannot merely rely on speculation, conclusory assertions, or averments outside of its personal knowledge for the court to identify reasonable support.” Id. “[O]ur jurisprudence has tended to equate the standard under the anti- SLAPP statute with the concept of frivolousness.” Id. at 559-560. See id. at 569, Appendix, for a chart detailing the steps taken in this analysis.
The statute allows for the attorney general, either “on his behalf or on behalf of any government agency or subdivision to which the moving party’s acts were directed” to “intervene to defend or otherwise support the moving party on such special motion.” G.L. c. 231, § 59H.
A party appealing a District Court order allowing or denying a special motion to dismiss may file directly with the Appeals Court, rather than in the Appellate Division of the District Court Department. See Van Liew v. Stansfield, 474 Mass. at 32. An appellate court will conduct a de novo review of the documentary record. See Bristol Asphalt, Co., Inc., 493 Mass. at 560-562.
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| Last updated: | October 20, 2025 |
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