Bill S.823

SENATE DOCKET, NO. 337 FILED ON: 1/11/2019

SENATE . . . . . . . . . . . . . . No. 823

By Mr. Boncore, a petition (accompanied by bill, Senate, No. 823) of Joseph A. Boncore for legislation to protect free speech through the anti-slaap law. The Judiciary.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 756 OF 2017-2018.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act relative to protecting free speech through the anti-slaap law.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 59H of Chapter 231 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking the section in its entirety and inserting in place there of the following new section:-

Section 59H. Strategic Litigation Against Public Participation; Special Motion to Dismiss

The purpose of this statute is to ensure full participation by citizens and organizations in the robust discussion of issues in furtherance of the right of petition, and of the rights of freedom of speech and of expression in connection with any matter of public concern. Because there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of First Amendment rights to speak on public issues, this statute recognizes that such litigation is disfavored and should be resolved quickly with minimum cost to those exercising their rights protected by the First Amendment to the U.S. Constitution or Article 16 of the Massachusetts Declaration of Rights. In furtherance of this purpose, in any case in which a party asserts that the civil claims, counterclaims, cross claims or pre-suit discovery against said party are based, either in whole or in part, on said party’s exercise of its right of petition, or of its rights of freedom of speech or freedom of expression in connection with any matter of public concern under the Constitution of the United States or of the Commonwealth, said party may bring a special motion to dismiss.

(a) The court shall advance any such special motion so that it may be heard and determined as expeditiously as possible. The court shall grant such special motion, unless the party against whom such special motion is made shows that:

i. the moving party’s exercise of its right of petition, or of the freedom of speech or freedom of expression in connection with any matter of public concern, either acting solely or in connection with others, was devoid of any reasonable factual support or any arguable basis in law; and

ii. the moving party’s acts caused actual injury to the responding party.

In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(b) The attorney general, on his behalf or on behalf of any government agency or subdivision to which the moving party’s acts were directed, may intervene to defend or otherwise support the moving party on such special motion.

(c) All discovery proceedings shall be stayed upon the filing of the special motion to dismiss under this section; provided, however, that the court, on motion and after a hearing and for good cause shown, may order that limited, specified discovery on the motion may be conducted. The stay of discovery shall remain in effect until notice of entry of the order ruling on the special motion.

(d) Said special motion to dismiss may be filed within sixty days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.

(e) If the court grants such special motion to dismiss, the court shall award the moving party all costs and reasonable attorneys’ fees, including those incurred for the special motion and any related discovery matters. Nothing in this section shall affect or preclude the right of the moving party to any remedy otherwise authorized by law.

(f) If the court denies such special motion to dismiss, the moving party shall be entitled to an interlocutory appeal of such denial. If such an interlocutory appeal is filed, the discovery stay shall remain in effect until the appeal is decided.

(g) As used in this section, the phrases “freedom of speech” and “freedom of expression” shall be defined as those rights are defined under the U.S. Constitution or the Massachusetts Constitution, whichever provides greater protection for the moving party.

(h) As used in this section, the words “right of petition” shall mean any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.

(i) As used in this section, the term “matter of public concern” shall be defined as inclusive of any written or oral statement that is recorded, displayed or distributed in-person or via any form of media, concerning any matter of political, social or other concern to the community, including but not limited to:

(1) public health or safety;

(2) environmental, economic, or community well-being;

(3) the government or public policy;

(4) a public official or public figure; or

(5) a good, product, or service in the marketplace or otherwise offered to the public.

Name:	District/Address:
Joseph A. Boncore	First Suffolk and Middlesex