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Massachusetts

Massachusetts’s anti-SLAPP law is relatively narrow. It only protects the right to petition the government under the U.S. and Massachusetts constitutions. Mass. Gen. Laws Ann. ch. 231, § 59H (2019).

Under the law, the petition right includes five categories of activities: statements made before a legislative, executive, or judicial proceeding; statements made in connection with an issue under consideration by a governmental body; statements reasonably likely to encourage a governmental body’s consideration of an issue; statements reasonably likely to enlist public participation in an effort to bring about such governmental consideration; and any other statements protected by the constitutional right to petition the government. Id.

The state’s highest court has limited the definition of this petition right to statements made on one’s “own behalf” and thus found the anti-SLAPP law inapplicable to a journalist’s objective, factual news report, even though the account concerned an issue under review by a government body and aimed to enlist public participation in the matter. Fustolo v. Hollander, 455 Mass. 861, 867 (2010).

The Massachusetts anti-SLAPP law allows a defendant to file a motion to dismiss the complaint, which the court will hear and decide “as expeditiously as possible.” Mass. Gen. Laws Ann. ch. 231, § 59H. Discovery activities are placed on hold from the time the motion is filed until the court rules on it, although the judge, after a hearing on the matter, may permit discovery if the requesting party can show good cause for it. Id.

The judge will grant the anti-SLAPP motion unless the plaintiff can show that the defendant’s claimed exercise of the petition right lacked any reasonable factual support or arguable basis in law, and his or her acts caused actual injury to the plaintiff. Id. In making this determination, a Massachusetts court will consider the complaint, the SLAPP defendant’s motion to dismiss, and any sworn statements containing facts on which the assertions in those documents are based. Id.

The state attorney general, on his or her own behalf or on behalf of any government body to which the SLAPP defendant’s acts were directed, may intervene to defend or otherwise support the defendant in the motion to dismiss. Id.

Notably, at least one federal court has held that Massachusetts’s anti-SLAPP law is a procedural rule and thus inapplicable in federal court. Stuborn Ltd. P’ship v. Bernstein, 245 F. Supp. 2d 312, 316 (D. Mass. 2003).

If the court denies the anti-SLAPP motion, the defendant is entitled to appeal that decision immediately. Fabre v. Walton, 441 Mass. 9, 9–11 (2004). If it grants the motion, the court will impose attorney’s fees and costs on the plaintiff. Mass. Gen. Laws Ann. ch. 231, § 59H.