Erik Weibust and Anthony Califano Published in Massachusetts Lawyers Weekly
"Anti-SLAPP Statute Shouldn't Protect Litigation-Related Statements to Media"

Erik Weibust and Anthony Califano's article "Anti-SLAPP Statute Shouldn't Protect Litigation-Related Statements to Media," was published in the July 20, 2009 issue of Massachusetts Lawyers Weekly. Their article discusses how "crafty litigants continue to search for ways to try their cases in the media while avoiding liability for their public comments." The article notes that one tactic employed is to assert coverage under the anti-SLAPP statute to avoid prosecution for defamatory statements to the media. According to the attorneys, "Any judicial validation of this tactic, however, would contradict the clear intent of the anti-SLAPP statute, which was designed as a shield to safeguard a citizen's lawful right to petition, not as a sword to allow individuals to defame others with impunity."

The attorneys note, "While the statute's original intent was to prevent real estate developers from bringing retaliatory lawsuits against those who lawfully challenged development projects, it has since been applied more broadly to encompass many forms of governmental petitioning." They continue, "In fact, Massachusetts courts have even extended its coverage to statements directed to the media when they 'mirror' those presented to legislation or executive bodies." For instance, if a citizen made a defamatory remark at a board hearing and then repeated the remark to the local press, the courts would consider the public remark protected petitioning activity according to the so-called "Mirror Image Doctrine." However, they note that Massachusetts courts have been careful to set limitations on the anti-SLAPP statute's applicability. Throughout their article, Erik and Anthony point to various cases that demonstrate the court's position.

They conclude, "The purpose of the anti-SLAPP statute, therefore, is not served by protecting defamatory media statements made for the purpose of influencing the progress or outcome of litigation…. Clearly, if the ligation privilege does not extend to allegations repeated in public, it would be inconsistent to grant anti-SLAPP protection to such statements."