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North End development dispute becomes test of state free-speech law before Supreme Judicial Court

On Monday, the Supreme Judicial Court hears arguments in a case that pits a North End developer against a resident who wrote about issues with his projects for a neighborhood newspaper.

Developer Steven Fustolo is suing Fredda Hollander for defamation, alleging that articles Hollander wrote for the Regional Review in 2006 so turned the neighborhood against him he was forced to cancel projects.

Hollander, who helped found the North End Waterfront Residents' Association, is attempting to get the suit thrown out under the state law against "strategic lawsuits against public participation," which is supposed to protect residents and civic groups against ruinous lawsuits by large corporations just for speaking up on their projects before government boards.

A lower-court judge rejected Hollander's argument, saying Fustolo's suit was solely about her role as a reporter and so exempt from the anti-SLAPP law because it only addresses a citizen's "right to petition" under the US and state constitutions.

In his brief to the SJC, though, Hollander's lawyer argues that newspaper articles can and do serve as "petitioning activity" covered by the law, by encouraging public participation at hearings:

Hollander's activity - "purposive" activity - fits most comfortably within petitioning intended to stir or "enlist public participation" and to "encourage consideration" of matters by governmental actors, by seeking to address or expose those matters in the press, by covering the antagonists, and by "connecting the dots," as a good reporter might do. Petitioning activity, accordingly, comes in many shades and embraces far more than the furnishing of information or comment directly to a governmental agency.

In their rebuttal, Fustolo's lawyers basically argue: Poppycock. They say Review publisher Phil Orlandella hired Hollander to provide factual reports of neighborhood meetings, not to promote her own personal views:

In authoring the five purportedly factually based news articles about the Fustolo Properties, Hollander was in no way exercising her own right to petition. As Hollander admits, she was a jourhalist for the Regional Review, covering land use and development issues in the North End community. Hollander had no personal stake in any of the Fustolo Properties that she wrote about and was not personally affected by the outcome of any of the projects. She was not attempting to address a wrong that she herself suffered or otherwise petitioning on her own individual behalf. Rather she was acting in her capacity as a reporter and purported to be writing objectively about issues of general public interest.

The Amercan Civil Liberties Union of Massachusetts, the Citizen Media Law Project and the Boston Bar Association's Lawyer's Committee for Civil Rights under Law filed a brief in support of Hollander, arguing that simple employment by a newspaper is not enough to strip a citizen of her rights under the anti-SLAPP law and that the law does not specify newspapers as exempt, only that people seeking its protection need to be engaged in "petitioning activity," and that newspapers can qualify because:

Newspapers, through their reporters, 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.

Hollander's reply to Fustolo.
ACLU and others.

You can watch the oral arguments in the case (click on the "Webcast" link). Hearings begin at 9 a.m.; this case is listed as the second to be heard.

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Bloggers, journalists and anyone that may ever want to write about civic activities should pay close attention to this case. Hopefully, the SJC will rule in favor of Hollander and throw out the developer's lawsuit. If she loses this case, it will give a green light for developers to throw lawsuits at anything they don't like written about their projects.

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