Massachusetts High Court Expands First Amendment Protections to Citizen Activists

John Reichman of the firm Wachtel Missry LLP was the lead attorney on this case.

On February 14, 2017, the Massachusetts Supreme Judicial Court unanimously reversed a Superior Court decision and ordered the dismissal of a defamation suit brought by Cardno ChemRisk against Cherri Foytlin and Karen Savage, environmental activists and bloggers, under the state’s anti-SLAPP statute.  The ruling provides important state law and First Amendment protections to citizen-activists who are willing to criticize powerful corporate interests.  It also ordered Cardno ChemRisk to pay the defendants’ attorney’s fees.

After BP’s 2010 Deepwater Horizon Oil Disaster, ChemRisk (now Cardno ChemRisk) published what was described as an “independent” study finding that Gulf Coast cleanup workers were not made sick by certain chemicals found in BP’s oil.

Shortly after the study was published, Foytlin and Savage discovered an undisclosed relationship between ChemRisk and BP. Foytlin and Savage wrote a 2013 article, ChemRisk, BP and Purple Strategies: A Tangled Web of Not-So-Independent Science, published in the Huffington Post, questioning the firm’s independence from the oil giant. They also raised ChemRisk’s questionable conduct and history in representing corporate polluters, including a case that became the basis for the movie Erin Brockovich, where ChemRisk was accused of manipulating data to limit the liability of Pacific Gas & Electric.

ChemRisk then initiated a legal assault against Foytlin and Savage.  It first sued them for defamation in New York.  When that case was dismissed on jurisdictional grounds, ChemRisk sued them again in Massachusetts.

A Massachusetts Superior Court judge refused to dismiss the case.  That decision was reversed by the Massachusetts Supreme Judicial Court.

Massachusetts, like several other states, has a statute protecting citizens against SLAPP suits, Strategic Lawsuits Against Public Participation.  The court rejected ChemRisk’s argument that the Massachusetts anti-SLAPP statute only applies when a citizen is addressing a “personal grievance.”  Rather, the Court found, the statute protects statements made to encourage public participation in any matter of public concern.

The decision also found that ChemRisk failed to offer evidence that the blog post was not factual, noting that Foytlin and Savage provided “factual support for the defendants’ characterizations of ChemRisk’s practices.”

“If ever a case fits the description of a SLAPP suit, it is this one,” said attorney John Reichman, who represented Foytlin and Savage.  “Fortunately, the Supreme Judicial Court’s decision not only vindicates my clients, but also protects others who speak up about issues of public concern.  It reinforces the judiciary’s important role in protecting the constitutional rights of our citizens.  That protection is particularly important today as more and more citizen-activists are speaking out,” said Reichman, a partner with Wachtel Missry LLP in New York.

“It was an honor to represent Cherri and Karen, who courageously, and at personal risk, took on powerful corporate interests who were acting contrary to the public interest,” he added.

“This is a win for free speech, a win for the right we all have to petition our government and a win for the first amendment. ChemRisk’s case was always about silencing us and no one -- whether they be bloggers, activists, journalists, or scientists -- should be harassed for telling the truth,” said Savage.

“It's not the first time David beat Goliath, but it is satisfying to know that justice can still prevail,” said Foytlin, now State Director for Bold Louisiana.   

“I extend much gratitude to our amazing lawyers - especially John Reichman, the ACLU, the Massachusetts Supreme Court, and to friends and family who have stood beside us during this long ordeal. Let it be known that two working-class, single mothers can stay standing, even against corporate power, when the cause is right,” she added.


John Reichman​
​(212) 909-9527

Source: Wachtel Missry LLP


Categories: Legal Rights, Courts

Tags: Citizen Activist, First Amendment, John Reichman, Litigation, Massachusetts Court, NYC Lawfirms, SLAPP, Wachtel Missry LLP

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