On May 12, 2016, the District of Massachusetts held that that an online campaign in support of the cancellation of a registered trademark (FIRE CIDER) was protected petitioning activity, even though the campaign was organized and supported by the trademark owner’s competitors. Because the campaign activity was protected, the Court granted the competitors’ anti-SLAPP special motion to dismiss certain claims. The case, Shire City Herbals v. Blue, provides insight into the applicability of the Massachusetts anti-SLAPP statute to internet activity.
“SLAPP” stands for “Strategic Lawsuits Against Public Participation,” often defined as meritless lawsuits brought in order to deter or punish a citizen for petitioning the government, in other words for exercising his or her political or legal rights. Anti-SLAPP statutes offer protection against such suits, usually by providing for expedited dismissal and attorneys’ fees. If you are looking for more comprehensive background on the Massachusetts anti-SLAPP statute (codified at Chapter 231, Section 59H of the Massachusetts General Laws) or anti-SLAPP legislation generally, you can find my take on that here.
When is Internet Speech Petitioning Activity?
So when does internet speech qualify as petitioning activity? The Massachusetts statute defines petitioning activity to include not just statements made directly to government bodies, but also those “made in connection with an issue under consideration or review” and those that are “reasonably likely to enlist public participation in an effort to effect such consideration.” Two prior cases help define how these definitions may or may not encompass internet speech.
The first case is MacDonald v. Paton, in which an Athol selectman filed a defamation suit against the operator of a website (the “Athonics Home Page”) which had referred to the selectman as a “nazi.” The Massachusetts Appeals Court determined that the website was a public forum facilitating the discussion of issues related to Athol town governance, that it was interactive in that it incorporated contributions from Athol citizens. Thus, although the speech in question was not made directly to the government, it was still considered protected petitioning activity because it took the form of a “technological version of a meeting of citizens on the Town Green.” The anti-SLAPP motion to dismiss was granted, and the selectman was ordered to pay the defendant’s attorneys’ fees.
The outcome was very different in Cadle Co. v. Schlictmann. Attorney Jan Schlichtmann (played by John Travolta in A Civil Action) set up a website in which he discussed the “fraudulent” and “illegal” activities of a certain debt collection company with which he had an ongoing legal dispute. These statements, some of which Schlictmann had made previously to government agencies, were accompanied by a solicitation encouraging “victims” to contact Schlictmann to retain his services. The debt collection company sued for defamation, and Schlictmann filed an anti-SLAPP motion to dismiss. The Supreme Judicial Court (SJC) held that Schlictmann’s website was not petitioning activity because, although it discussed matters that had attracted government attention, its principal “design” was to attract new clients. Perhaps most importantly, unlike the website in MacDonald, its design was not interactive. A viewer of the website had no opportunity to contribute his or her own opinion; the only way they could participate was to hire Schlictmann.
The Fire Cider Case
That leads us to Fire Cider, an internet speech case which involved commercial motives, as in Cadle, but interactive form, as in MacDonald.
In 2012, Shire City Herbals obtained a federal trademark registration for FIRE CIDER in connection with the sale of dietary supplement beverages (specifically a concoction of apple cider vinegar, citrus, honey and spices). Shire’s efforts to enforce its mark rankled competitors, who claimed that the drink was a common herbal remedy that had been called “Fire Cider” for decades, and thus the term was generic. The competitors began an online campaign, the ultimate goal of which was the cancellation of Shire’s FIRE CIDER mark. This included a change.org petition, a freefirecider.com webpage and various social media pages and accounts, which the defendants used to organize support.
These activities did not directly propose commercial transactions, but according to Shire they involved a commercial component. For instance, the defendants allegedly linked their commercial websites to the campaign website, which encouraged consumers to download pre-written form letters to send to retailers. These letter demanded that Shire products be replaced with alternative products until the FIRE CIDER mark is abandoned or cancelled. The website, in turn, provided a list of acceptable alternatives, including products sold by the defendants and by third parties. This and similar activities allegedly resulted in Shire products being replaced by the defendants’ products on some store shelves.
In connection with these activities, the defendants also brought a pro se petition before the Trademark Trial and Appeal Board to cancel the FIRE CIDER mark. Shire responded by filing suit in the District of Massachusetts, asserting trademark infringement and several non-trademark claims (including trade libel, tortious interference and trade disparagement) based on allegedly false statements made in connection with the online campaign. The defendants filed an anti-SLAPP motion to dismiss the non-trademark claims on the grounds that they were based solely on petitioning activity.
The Court found that the defendants’ activity constituted protected petitioning and allowed the anti-SLAPP motion to dismiss the non-trademark claims. Even though the online statements were not made directly to the government, the Court found that they were “reasonably likely to encourage consideration or review of an issue” by the government and “reasonably likely to enlist public participation in an effort to effect such consideration.” The Court acknowledged that the defendants “may have obtained some commercial benefits” in connection with this petitioning activity, but that “it is difficult to see how these commercial benefits could be considered evidence indicating Defendant’s [petitioning] statements are secretly designed to promote their own products or serve as cover for the real purpose of selling them.”
Form Matters, Motive Does Not
The most obvious lesson we can take away from these cases is that, while commercial motive is not relevant to whether internet speech is protected petitioning activity, the form of that internet speech is very important. In practical terms, whether internet speech is considered to have the form of petitioning activity will depend on (a) whether the speech is interactive or a one-way communication; (b) whether there are participants in the interactive discussion other than those who will directly benefit commercially; and (c) whether the proposal of a commercial transaction, if any, is direct and immediate on the one hand (e.g., ‘call now for legal representation’), or on the other hand will require additional steps (e.g., ‘download this form letter, send it to your retailer, and direct them to a list of alternatives.’). It is still too early to create a comprehensive map of the application of anti-SLAPP legislation to internet speech, but these cases indicate that why you say something is not as important as how it is said.