Group includes Boston Globe, New England Newspaper Association
Argues for anti-SLAPP protection for Cape Cod Today blogger
By James Kinsella
A group of media and online interests has weighed in on the side of blogger Peter Robbins of Centerville, who along with an anonymous blog commenter is being sued in Barnstable Superior Court for defamation.
Acting on their behalf, the Cyberlaw Clinic at the Berkman Center for Internet & Society at Harvard Law School has produced a legal memorandum in support of applying the Massachusetts Anti-SLAPP law to petitioning activity by members of the news media and bloggers.
The clinic is providing legal representation to a number of entities that seek to act as Amici Curiae (that is, friends of the court) regarding the lawsuit. They include the Citizen Media Law Project, Globe Newspaper Co., Media Bloggers Association, New England Press Association and the Online News Association.
The case is scheduled to return to court at 2 p.m. Thursday. Attorneys for Robbins and for the plaintiffs, Joseph Dugas of Barnstable and Paul Revere III of Centerville, will argue before Judge Robert Rufo whether the case should be allowed to go forward.
According to the Cyberlaw Clinic's memorandum, which was submitted by attorney Christopher T. Bavitz, the "amici are news organizations and non-profit organizations that publish on the Internet and seek to protect the rights of journalists and other citizens to publish online.
"Amici are concerned that if the court were to deny members of the news media and bloggers the important protections afforded by the Massachusetts anti-SLAPP law, this would chill their efforts to inform citizens of the Commonwealth about issues before government," the lawsuit states.
The case concerns a March 11, 2008 blog post by Robbins on Cape Cod Today in which he criticized Dugas and Revere, who had challenged orders and permits issued by the Town of Barnstable Conservation Commission and the state Department of Environmental Protection that authorized dredging in Barnstable Harbor. An anonymous commenter on the blog post also made critical comments.
Dugas and Revere subsequently sued Robbins and the anonymous commenter, referred to in their suit as "John Doe," for defamation.
On Aug. 29, Robbins filed a motion to dismiss the complaint pursuant to the state's anti-SLAPP law (Massachusetts General Laws Chapter 231, Section 59H.)
At a hearing on Sept. 26, according to the memorandum, Judge Rufo asked the parties to submit "supplemental briefs addressing whether the compensation Mr. Robbins receives for his blogging activities makes him a member of the 'news media' and, if so, whether that status would put him outside the protections offered by the Massachusetts anti-SLAPP law.
SLAPP is an acronym standing for "Strategic Lawsuit Against Public Participation."
According to the memorandum, "the point of a SLAPP is to intimidate and silence the target through the threat of an expensive lawsuit." SLAPP is an acronym standing for "Strategic Lawsuit Against Public Participation."
In the memorandum, the amici argue that Robbins is entitled to the protections set forth in the anti-SLAPP law regardless of whether he is characterized as a member of the news media.
According to the memorandum, anti-SLAPP laws protect citizens and organizations that engage in 'petitioning' activities by prohibiting lawsuits aimed at curtailing such activities.
The Cyberlaw Clinic argues that people who engage in petitioning activities are protected by law, even if they're members of the news media.
"The news media potentially engage in at least three different types of petitioning activity that fall within the protections of the statute," the memorandum states.
"They engage in news reporting to influence, inform and bring about governmental consideration of issues and to foster public participation in order to effect such consideration," the memorandum states. "They publish editorial statements with these same purposes in mind. And they also make statements directly to legislative, judicial and other governmental bodies."
In the memo, the clinic states that the fact that Robbins is paid for his blogs doesn't preclude application of the anti-SLAPP law.
"Under the Supreme Judicial Court's holding in Kobrin v. Gastfriend, a blogger who is compensated for his work can still have a personal interest in an issue under governmental consideration sufficient to qualify for protection under the statute," the memorandum states.
The memorandum argues that the state's anti-SLAPP law does not limit the type of party that may use the law to dismiss a case.
Further, the memorandum argues that the fact that a petitioning party receives compensation does not, by itself, take the party outside the anti-SLAPP law's protections.
A compensated blogger, the memorandum states, may have a specific interest in the matter under governmental consideration; may have an interest in the resolution of issues of concern to the community; and may have an interest in informing the public about issues of public concern.