268 A.3d 863
Me.2022Background
- Investor’s Business Daily (IBD) publishes opinion pieces and op-eds; it ran a December 22, 2017 op-ed by Sally Pipes criticizing VA care that singled out Dr. Thomas Franchini.
- Franchini sued for defamation in federal court; IBD filed a special motion to dismiss under Maine’s anti‑SLAPP statute, 14 M.R.S. § 556 (and alternatively invoked California law).
- The district court denied IBD’s special motion; IBD appealed to the First Circuit, which certified to the Maine Law Court the question whether IBD’s special motion should be granted under § 556.
- The core legal issue: whether a publisher that selects and publishes an advocacy/op‑ed aligned with its views is ‘‘petitioning’’ on its own behalf such that Maine’s anti‑SLAPP statute applies.
- The Maine Law Court declined to answer the certified question, concluding there is clear controlling precedent (Gaudette II) and that the petitioning determination is fact‑dependent and for the factfinder/appellate courts to resolve.
- A single justice dissented, arguing the Court should accept certification (federalism/comity), that Gaudette II is not controlling on advocacy/editorial publications, and that one answer would be dispositive in the federal case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether publishing an op‑ed constitutes exercise of the publisher’s own right to petition under Maine’s anti‑SLAPP statute | Franchini: the publication was not IBD’s own petitioning; anti‑SLAPP inapplicable | IBD: selecting/publishing advocacy aligned with its views to influence policy is petitioning by IBD | Court: declined to answer the certified question; returned it to First Circuit, citing existing precedent and the fact‑driven nature of petitioning inquiry (dissent would have answered) |
Key Cases Cited
- Franchini v. Inv.’s Bus. Daily, Inc., 981 F.3d 1 (1st Cir. 2020) (First Circuit opinion certifying question to Maine Law Court)
- Gaudette v. Davis (Gaudette I), 160 A.3d 1190 (Me. 2017) (anti‑SLAPP burden‑shifting framework; first step is question of law)
- Gaudette v. Mainely Media, LLC (Gaudette II), 160 A.3d 539 (Me. 2017) (held straight news reporting is not petitioning; expressly reserved when editorializing might be)
- Thurlow v. Nelson, 263 A.3d 494 (Me. 2021) (modified procedural application of § 556)
- Morse Bros., Inc. v. Webster, 772 A.2d 842 (Me. 2001) (earlier articulation of anti‑SLAPP standard)
- Nader v. Me. Democratic Party, 41 A.3d 551 (Me. 2012) (prior procedural framework for anti‑SLAPP motions)
- Bankr. Est. of Everest v. Bank of Am., N.A., 111 A.3d 655 (Me. 2015) (certification requires answer to be dispositive in at least one alternative)
- White v. Edgar, 320 A.2d 668 (Me. 1974) (policy favoring acceptance of certified questions to promote federal‑state comity)