February 14, 2017:-Today the highest court in Massachusetts marked St. Valentine’s Day by demonstrating its love for free speech.
The question was this: If bloggers accuse a scientific consulting company of fraud, questionable ethics, and intentionally manipulating findings, may the company sue the bloggers for defamation? The answer: No, not in Massachusetts, at least not if the company is providing expert testimony in high-profile litigation.
In a case connected to the Deepwater Horizon explosion and oil spill, the Supreme Judicial Court (SJC) considered the defamation complaint one of BP’s experts, Chemrisk, had brought against two environmental activists. The activists wrote that Chemrisk had engaged in fraud and “intentionally manipulated findings.” Relying on the anti-SLAPP statute, they had asked a lower court to dismiss Chemrisk’s lawsuit. The lower court denied the motion, but the SJC essentially overturned that denial and, to boot, awarded the activists their costs and legal fees. To read the SJC decision, click here.
The anti-SLAPP statute protects defendants not only in directly petitioning governmental bodies, but also in making “any statement reasonably likely to enlist public participation” in that petitioning effort effort. According to the SJC, the activists’ blog post was “part of [their] ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and closes with an implicit call for its readers to take action.”
Today’s decision represents a very welcome victory for freedom of speech.
Must a charity that offers free reconstructive surgery to female victims of domestic violence also provide those services to a gay man? No, said the MCAD in a decision last September. Only two months earlier the Legislature and Governor had prohibited places of public accommodations from excluding men from women’s restrooms and locker rooms, so you might think the case would have grabbed the odd headline, but apart from this Mass Lawyers Weekly article it received surprisingly little media attention.
The respondent was the R.O.S.E (Regaining One’s Self Esteem) Fund, a non-profit that seeks to help women who are the survivors of domestic violence. In 2008 it declined to extend its services to Kevin Doran, whose male partner had assaulted him, leaving him with broken teeth and facial bones. With the support of Gay & Lesbian Advocates & Defenders (GLAD), Mr. Doran argued that the ROSE Fund is a place of public accommodation and that by turning him away it had violated the Massachusetts anti-discrimination laws.
In 2014 an MCAD hearing officer ruled in favor of the ROSE Fund, finding that the organization was not a place of public accommodation. In its appeal brief GLAD said the decision meant that “ROSE can now discriminate not only against men, but also on the basis of race, national origin, religion, sex, sexual orientation, and disability as well.”
Nevertheless the full three-member Commission upheld the 2014 decision on First Amendment grounds:
“The U.S. Supreme Court has recognized the venerable history of the public accommodation laws in Massachusetts, but when applied to expressive activity, the laws may not act to compel certain speech in violation of the First Amendment.”
For that reason, the Commission held that “a private charity set up with the express purpose of serving a narrow community may be allowed to make choices about whom to serve, based on the purpose of the organization and consistent selection criteria.”
This is a very narrow ruling. The MCAD limits its First Amendment expressive-activity exception to a thin sliver of entities: tax-exempt corporations set up to serve a “narrow community,” as opposed to regular businesses and individuals who do not have tax-exempt status and cater to the general public. The decision sits awkwardly alongside expressive-conduct cases from other jurisdictions such as Elane Photography (photographers fined for refusing to photograph same-sex commitment ceremony) and Barronnelle Stutzman (flower arranger fined for refusing to design arrangement for her friend’s same-sex wedding). In those cases, the fact that the defendants’ businesses consisted of expressive activity did not exempt them from the legal obligation to provide their services at same-sex weddings. If those are not examples of the state “compelling certain speech” I don’t know what is.
And as for why tax-exempt corporations should have greater free-speech rights than the rest of us, that is not something the MCAD’s Doran decision addresses.
October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.
The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.
Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.
But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis. The footnote in question is number 6 on page 15.
June 16, 2016:- It was on June 16, 1780 (236 years ago today) that the Constitution of the Commonwealth of Massachusetts was deemed and declared ratified. Its principal author, John Adams, produced an operating manual for a self-governing commonwealth of free people that combines practicality with elegance. If you have a minute or two to mark the occasion of our Constitution’s anniversary, you may wish to read the Preamble:
The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.
The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.
We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.
As if they needed it this presidential-campaign season, here’s some good news for political consultants. The Massachusetts Office of Campaign and Political Finance (OCPF) is generating more business for them.
The latest state regulation aimed at controlling the funding of political speech means that candidate committees and independent expenditure political action committees (IE PACs) will face penalties if they share consultants. How will they likely avoid that? By employing separate consultants, of course.
Massachusetts law prohibits IE PACS from coordinating with candidate committees. But proving coordination can be difficult, so the regulations create presumptions that put the onus on the PACs and candidate committees to prove they did not coordinate. Readers with backgrounds in criminal law, constitutional law, high-school civics, or cop shows may be familiar with the presumption of innocence: These presumptions are not like that presumption.
Under the new state regulation, there will be a presumption that the IE PAC and the candidate committee are coordinating expenditures if they use the same “political, media, or legal consultant, or polling firm.” They can rebut the presumption, i.e. prove their innocence, by demonstrating that they adhered to a written firewall policy, the sort of document lawyers and political consultants are good at drafting. Those who would prefer to avoid any entanglements in the first place should bear in mind the words of Han Solo on the subject: “That’s the real trick, isn’t it. And it’s gonna cost you something extra.” An extra consultant, that is.
Another provision states that there will be a presumption of coordination if an IE PAC republishes in whole or in part “a communication relating to a candidate that is posted on the candidate’s Internet or social media site.” So no mere copying from now on. This rule should encourage even greater creativity (a billable quality) by requiring IE PAC consultants to make their clients’ communications look and sound distinct from those on the candidates’ site. Whoever said red tape stifles business?
Somewhere in the Caribbean, I suspect, there floats a yacht named OCPF.
March 31, 2016:- Yesterday the Supreme Judicial Court issued its decision in Van Liew v. Stansfield, a case I wrote about here involving two Chelmsford politicians. What a relief that the Court ruled that politicians should not use the anti-harassment laws to shut up their critics, and what a disgrace that the question even came up in Massachusetts in the Twenty-first Century.
By way of a reminder: When one politician (Van Liew) referred to the other (Stansfield) as corrupt and a liar, called her uneducated and stupid during a phone conversation, and allegedly said during the course of a meet-and-greet event at the local library “I’m coming after you,” Ms. Stansfield sought a civil harassment-prevention order. The judge not only granted the order, but even prohibited Mr. Van Liew from using Ms. Stansfield’s name online and in print, an order that brings to mind the 1982 Zimbabwean law that forbade jokes about the name of the president, Canaan Banana.
After the election, Mr. Van Liew sued Ms. Stansfield for malicious prosecution and abuse of process, and Ms. Stansfield brought a special motion to dismiss the case under the anti-SLAPP statute. Yesterday’s decision from the Supreme Judicial Court means that Mr. Van Liew’s case can go forward (four years after a judge banned him from uttering his opponent’s name during a political campaign). A welcome vindication of the rights of the citizen, to be sure, but how unfortunate that a candidate for public office would ask a judge for a gag order and how much more unfortunate that a judge would issue one.
Should politicians be allowed to use the harassment-prevention laws to silence their opponents? That is one way to frame the question that the Supreme Judicial Court (SJC) will consider in December. Here is the way the SJC frames the political-speech question presented by Van Liew v. Stansfield:
Whether statements made by the plaintiff, allegedly in the context of “political discourse,” could have qualified as acts of harassment for purposes of G. L. c. 258E; whether a request by the defendant, an elected official, for a harassment prevention order under c. 258E “was devoid of any reasonable factual support or any arguable basis in law” for purposes of the anti-SLAPP statute, G. L. c. 231, § 59H, where the plaintiff’s statements on which the request was based allegedly were “political speech” and made to express the plaintiff’s “version of what was happening in the town.”
In a nutshell, during a municipal election campaign in Chelmsford one local politician (Stansfield) obtained a court order banning another local politician (Van Liew) from using Stansfield’s name “in any email, blog, twitter, or any document through the internet, television show, ad, or otherwise.” In an ex parte hearing (i.e. without the opposing party) Stansfield alleged that Van Liew’s conduct amounted to harassment under M.G.L. c. 258E. The court later decided not to extend the order. Van Liew then sued Stansfield for malicious prosecution and abuse of process. After the district court dismissed his complaint and the appellate division re-instated it, the matter ended up on docket of the commonwealth’s high court.
Given the case’s implications for freedom of speech, it is not surprising that the SJC has requested amicus briefs. But with oral arguments scheduled for December, there is very little time for interested parties to weigh in.
If you would like to see and hear the litigants, click here for Ms. Stansfield (from minute 12:25) and here for Mr. Van Liew (from minute 19:40).
The question before the court is whether the statements that Mr. Van Liew made to Ms. Stansfield could constitute harassment, which the statute (chapter 258E) defines as “three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.” I shall write more on that question in a later post. In the meantime, an equally important question is one that the SJC has not articulated in its request for amicus briefs, namely whether a judge issuing a harassment-prevention order should engage in such sweeping prior restraint as the judge in this case.
At Ms. Stansfield’s request, the judge prohibited Mr. Van Liew from using Ms. Stansfield’s name in any TV appearance, advertisement, email, blog, or tweet. Because of this, according to his brief, Mr. Van Liew cancelled a Meet the Candidate show that had been going to run online and on TV. By way of the anti-harassment law Ms. Stansfield achieved a result that she probably could not have obtained via defamation law.
If Ms. Stansfield had been suing Mr. Van Liew for libel, and sought a preliminary injunction to prevent Mr. Van Liew from publishing further defamatory statements about her, I suspect the judge would have looked at her request through First Amendment lenses and denied the request.
So I have a question, particularly for any of my Legislative Drafting students who are reading this: Is this something best left to the discretion of a trial judge, or should the Legislature amend chapter 258E to make clear that it must not be used to chill freedom of speech? If you think a legislative fix is necessary, what would your proposed amendment say?