Last week, in Bristol Asphalt v. Rochester Bituminous Products, the SJC jettisoned two prior decisions and revised its directions to lower courts regarding how to handle “special motions to dismiss” under Massachusetts’ so-called “Anti-SLAPP” statute.  If you don’t know what SLAPP stands for, you can just stop reading now. 

The purpose of the Anti-SLAPP statute is, in brief, to prevent large corporations from stifling petitioning activities by citizen groups.  Unfortunately, the statute is both vague and overbroad, resulting in it becoming “a frequent subject of [SJC] jurisprudence since” it was enacted.  The SJC’s effort to reform jurisprudence under the Anti-SLAPP statute is a reaction to the difficulties the statute has created.  It also likely resulted in part from a dissent in the Appeals Court decision in Bristol Asphalt from Justice Englander, which I think can best be described as a cri de coeur, practically begging the SJC to fix the statute.

Unfortunately, the problems with the SJC’s jurisprudence stem from the statute itself and not simply from prior SJC or Appeals Court decisions.  As the SJC acknowledged, there are several structural flaws in the statute that are pretty much immune to judicial cure.  First, both parties can assert that they are acting in order to protect their rights to petition.  Second, the statute protects petitioning activities that are solely devoted to protecting a petitioner’s commercial interests, which is not exactly what the drafters had in mind and, as reflected in Bristol Asphalt, has led to numerous suits between competitors.

Indeed, the very existence of the Anti-SLAPP Statute has undoubtedly encouraged competitors to challenge projects on flimsy grounds, knowing that the competitor would think twice before bringing an abuse of process or similar claim, because such claims would be subject to the special motion to dismiss process under the Anti-SLAPP statute.

In short, while I appreciate the SJC’s efforts to fix the statute, the proper metaphor in this case is that of putting lipstick on a pig.  Justice Englander’s cri de coeur would have been better directed at the legislature.  Unfortunately, I’m not holding my breath regarding a legislative remedy.