Massachusetts Anti-SLAPP Statute: Motion, Discovery Stay & Fees

The Massachusetts anti-SLAPP statute, codified at General Laws Chapter 231, Section 59H, gives anyone sued over their petitioning activity a fast way out: a special motion to dismiss that stays discovery, forces the plaintiff to justify the suit under a demanding test, and awards attorney’s fees to the defendant if the motion is granted. The law exists because strategic lawsuits against public participation work by running up legal bills, and Section 59H is designed to end those suits before the bills pile up.¹

What Counts as Protected Petitioning

Section 59H protects what it calls “a party’s exercise of its right of petition,” and the definition is deliberately wide. It covers five kinds of statements:

Written or oral statements made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding.
Statements made in connection with an issue already under consideration by a government body.
Statements reasonably likely to prompt a government body to consider or review an issue.
Statements reasonably likely to enlist public participation in pushing for government review.
Any other statement falling within the constitutional right to petition government.

Testimony at a town zoning hearing qualifies. So does a blog post criticizing a party to federal litigation, as the Supreme Judicial Court held in Cardno ChemRisk, LLC v. Foytlin, where environmental activists wrote about a consulting firm retained by BP during the Deepwater Horizon case. The court held the post was protected petitioning because it concerned an issue under review in a government proceeding, and you do not need to be a party to that proceeding for your statements about it to qualify.²

The common thread is a nexus to government proceedings or the constitutional right to petition. Statements directed only at private parties, with no plausible connection to any governmental proceeding, fall outside the statute. The First Circuit made that explicit in Blakesley v. Marcus, holding that reports to private entities like employers or schools do not automatically count as petitioning absent a plausible link to an actual governmental proceeding.³

Filing the Special Motion to Dismiss

You have 60 days from service of the complaint to file your special motion, though the court has discretion to allow a later filing on whatever terms it considers appropriate.¹ Filing early is almost always the better move, because the automatic discovery stay only kicks in once the motion is filed.

The statute applies to claims, counterclaims, and cross-claims alike. If you file a lawsuit and the opposing party hits back with a counterclaim based on your petitioning, you can bring a special motion against that counterclaim. One carve-out: the statute does not apply to cases brought by the Attorney General under Chapter 12, Section 11I½, which covers enforcement actions against unfair or deceptive practices.

Once filed, the court must advance the motion so it can be heard and decided as quickly as possible. The judge decides it on the pleadings, affidavits, and legal argument, not on live testimony or a full evidentiary record.⁴

How the Court Decides the Motion

The analysis runs in two stages, with the burden shifting after the first. The framework began with the Supreme Judicial Court’s 1998 decision in Duracraft Corp. v. Holmes Products Corp. and was reshaped in 2017 by Blanchard v. Steward Carney Hospital, Inc.

Stage One: Your Threshold Showing

As the moving party, you must show through pleadings and affidavits that the claims against you are based solely on your petitioning activity, with no substantial basis in other conduct. That is the Duracraft threshold.⁵ If the plaintiff’s claims mix petitioning with substantial other conduct, like a breach of a nondisclosure agreement, the motion fails here. Duracraft itself was denied on that basis, and the First Circuit confirmed in Blakesley that “mixed claims” proceed through ordinary litigation.³

Stage Two: The Plaintiff’s Response

If you clear stage one, the burden shifts to the plaintiff. Under Blanchard, the plaintiff now has two alternative routes to defeat your motion:⁶

Show sham petitioning. The plaintiff can demonstrate that your petitioning lacked any reasonable factual support or any arguable basis in law, and that it caused actual injury. This is the original statutory test.
Show the suit is not a SLAPP. Alternatively, the plaintiff can establish, with enough certainty that the judge can conclude with “fair assurance,” that the primary motivation for the lawsuit was to seek compensation for genuine harm, not to burden or interfere with petitioning rights. The underlying claim must be colorable, meaning it offers some reasonable possibility of a decision in the plaintiff’s favor.

That second route is the Blanchard court’s addition. Before 2017, a plaintiff with a legitimate grievance could lose at this stage simply because the suit happened to involve petitioning, even if it was never intended to suppress speech. The alternative path now lets non-retaliatory claims survive.

The Automatic Discovery Stay

Filing the motion freezes all discovery. No depositions, no document requests, no interrogatories while the motion is pending. The stay stays in effect until the court rules.¹

This is one of the statute’s most powerful protections. SLAPP suits work by imposing discovery costs on defendants. When a developer sues a neighborhood activist for speaking at a zoning hearing, the real weapon is not the eventual verdict but the months of document production and depositions leading up to it. The automatic stay cuts that off. A court can lift the stay for specific, limited discovery, but only after a hearing and only for good cause shown, and judges grant those requests sparingly.

Attorney’s Fees When You Win

If the court grants your special motion, it must award you costs and reasonable attorney’s fees. The statute uses “shall,” making the award mandatory rather than discretionary, and it covers fees for the motion itself and any related discovery matters.¹ Courts require detailed documentation of fees and assess their reasonableness.

The fee-shifting provision changes the math for a plaintiff considering a marginal suit against someone’s petitioning. The statute also preserves your right to any other remedy otherwise authorized by law, so the fee award does not foreclose other avenues. Section 59H itself does not independently authorize sanctions beyond fees and costs; any further consequences would have to come from other sources, such as Rule 11.

What Happens if the Case Is in Federal Court

Massachusetts anti-SLAPP protections do not disappear if the case ends up in federal court. The First Circuit applies Section 59H in diversity cases, treating the state’s substantive framework, including the burden-shifting test, as controlling. Blakesley v. Marcus in 2025 confirmed that approach and applied the full Duracraft–Blanchard analysis.³

Federal circuits are split on whether state anti-SLAPP statutes apply in diversity, a disagreement traced to the Supreme Court’s fractured opinion in Shady Grove Orthopedic Associates v. Allstate Insurance Co. The First Circuit’s willingness to apply the Massachusetts statute gives defendants in this jurisdiction a procedural advantage that defendants elsewhere may not have.

1
General Court of Massachusetts. Massachusetts General Laws Chapter 231, Section 59H
2
Justia. Cardno ChemRisk, LLC v. Foytlin
3
FindLaw. Blakesley v. Marcus
4
Mass.gov. Massachusetts General Laws c.231 59H – Strategic Litigation Against Public Participation; Special Motion to Dismiss
5
Justia. Duracraft Corporation vs. Holmes Products Corporation
6
Justia. Blanchard v. Steward Carney Hospital, Inc.