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July 21, 2021

Legal Update
Dylan Sanders

Free Speech v. Extortion: Appellate Court’s Anti-SLAPP Decision Limits Acceptable “Petitioning of Government”

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Opposing the proposed zoning of a neighboring property is one thing; extorting and threatening a neighboring property owner is quite another. That was the distinction made by a state Appeals Court in a recent decision involving Massachusetts’ anti-SLAPP law in which the defendants’ efforts to block the plaintiff from opening a cannabis dispensary “fell outside any acceptable boundary.”

In affirming a Superior Court ruling denying a motion to dismiss, the Appeals Court in Haverhill Stem, LLC v. Jennings reaffirmed the principle that the anti-SLAPP statute, which protects citizens’ constitutional right to petition the government, does not shield all actions or statements just because they may be indirectly connected to their petitioning efforts.

“Threatening, Extorting, Intimidating”

In Haverhill Stem, the plaintiff purchased a property in Haverhill’s waterfront district to open a cannabis dispensary and was advocating for zoning ordinance changes that would allow such establishments in the area. The defendants owned the property next door and had been involved in a dispute with the prior owner of the plaintiff’s building over a $30,000 payment for a deck constructed on the plaintiff’s property.

Defendants opposed the zoning change. As alleged in the complaint, the defendants told the plaintiff they “would fight whatever [plaintiff] proposes for use of the building” unless it paid them the $30,000 they claimed the plaintiff’s predecessor owed them.

Throughout the plaintiff’s efforts to secure the desired zoning for their dispensary, defendants “engaged in a pattern and practice of threatening, extorting, intimidating and/or suing a business neighbor and applicant for their own financial gain,” according to the plaintiff’s complaint. This included threats not only to the plaintiff’s business project but also to her family and her family’s financial well-being.

After Haverhill approved the zoning ordinance allowing marijuana establishments, the defendants filed a suit in Land Court against the plaintiff and others, seeking to invalidate the recreational marijuana zoning bylaw. A day later, the plaintiff sued the defendants for defamation and civil rights violations, among other claims.

Claims Not Based Solely on Exercising the Right to Petition Survive Anti-SLAPP Motion to Dismiss

Defendants moved to dismiss the complaint under Massachusetts’ anti-SLAPP (strategic litigation against public participation) law. As we have written elsewhere, legislature enacted the anti-SLAPP statute in 1994 to discourage “strategic litigation”—litigation brought not necessarily to win relief, but rather to intimidate parties from exercising their constitutional rights to free speech and to petition the government. The anti-SLAPP statute provides a mechanism for the early dismissal of civil claims if they are “based solely on [a defendant’s] exercise of the right of petition” to the government. Here, the defendants asserted that their opposition to the zoning changes constituted petitioning activity protected by the anti-SLAPP statute.

The Superior Court disagreed and denied the anti-SLAPP motion, concluding that the defendants had failed to show that plaintiff’s claims were “based solely on [the defendants’] exercise of the constitutional right to petition.” While some of the plaintiff’s claims were premised on protected petitioning activity, other significant allegations relating to the defendants’ threats of economic ruin and demands for the $30,000 payment were not.

In affirming the Superior Court’s denial of the anti-SLAPP motion to dismiss, the Appeals Court concluded that “the threats and coercive actions by the defendants were directed at [the plaintiff] rather than a government entity” and thus did not constitute protected petitioning. The court then considered whether the defendants’ conduct could nevertheless qualify as “petitioning” because it was “in connection with” an issue under consideration by a government body.

The plaintiff’s claims were based on an “extended pattern of threats, made in an effort to coerce payment,” the Appeals Court wrote. “We agree with the judge that to the extent the plaintiff’s claims were seeking redress for such behavior, they were not based solely on petitioning activity, and not subject to dismissal.”

In its opinion, the court distinguished vigorous opposition to a proposed government action from conduct that goes far beyond constitutionally protected petitioning activity:

“While we acknowledge that there is room for ‘rough and tumble’ in business negotiations, and that such negotiations could occur in relation to legitimate petitioning activity, the repeated threats alleged here, designed to coerce payment—including threats that portended economic ruin without basis—fell outside any acceptable boundary.”

Stay tuned for potential further developments, as the defendants have asked the Massachusetts Supreme Judicial Court for further appellate review.