ISLAMIC SOCIETY OF BOSTON, et al. Plaintiffs vs. BOSTON HERALD, INC., et al.1 Defendants

This is an action brought by the Islamic Society of Boston ('ISB') and two
individuals seeking damages against seventeen named defendants for defamation
and alleged civil rights violations. Eight of these defendants are media
entities or individuals reporting for those entities. The remaining nine (the
'Non-Media Defendants') are individuals or groups who the plaintiffs allege
orchestrated a media campaign against the ISB's attempts to construct a mosque
in Roxbury. These Non-Media Defendants have now filed a Special Motion to
Dismiss under G.L.c. 231 '59H, the 'Anti-SLAPP Statute,' contending that their
actions were 'petitioning activity' within the meaning of that statute. This
Court disagrees, and therefore concludes that the Motions must be Denied.

BACKGROUND2

The ISB is a charitable religious organization that operates a mosque on
Prospect Street in Cambridge, Massachusetts. According to its website, its
purpose is to 'practice and promote a comprehensive balanced view of Islam' and
take the 'path of moderation, free of extremism.' Plaintiff Yousef Abou-Allaban
is the chairman of the ISB's Board of Directors. Plaintiff Osama Kandil is the
chairman of the Board of the Islamic Society of Boston Trust (the 'ISB Trust'),
which owns the property on which the Cambridge mosque operates and which has as
its sole beneficiary the ISB. Both individual plaintiffs hold doctorate degrees
and are United States citizens. Dr. Kandil lives with his family in Virginia
(with three of his children now attending MIT), and Dr. Abou-Allaban lived in
Massachusetts between 1989 and August 2005.

The ISB came into being in the early 1980s. At some point in the 1990s, the
ISB began to look for a new site for its mosque. Its attention was drawn to a
vacant parcel of property across the street from Roxbury Community College (the
'College').

This parcel ('Parcel R-14") was located at King Street, Malcolm X
Boulevard and Dudley Street, and and was jointly owned by the City of Boston
and the Boston Redevelopment Authority ('BRA').

1. The History of Parcel R-14

Parcel R-14 was one of 25 parcels designated by an Urban Renewal Plan (the
'Plan') adopted by the BRA in 1970 and approved by the City Council and Mayor
the following year. One of the Plan's goals was to upgrade, both physically and
economically, certain distressed areas in the City through development which
would benefit the surrounding community. Almost two decades later, however,

Parcel R-14 was still vacant.

In 1990, a land use study conducted by the BRA suggested that Parcel R-14 be
designated a 'Community Facilities District.' Uses encouraged for such a
district included a community center, a place of worship or an adult education
center ' uses which would be specific to the surrounding community in contrast
to 'indiscriminate larger institutional uses.' These suggestions were
ultimately incorporated into the Roxbury Neighborhood Zoning Amendment, adopted
by the Boston Zoning Commission in 1991.

In July 1992, the BRA produced a Request for Proposals ('RFP') to develop
Parcel R-14, including within it a detailed set of guidelines and instructions
for potential developers. The College, together with other neighborhood
organizations, supported the RFP. On October 31 and November 2, 1992, legal
notices appeared in the Boston Herald inviting proposals and emphasizing that
the primary objective was to develop Parcel R-14 with a community center
'compatible with the delivery of a desirable mix of religious, educations
[sic], and cultural services consistent with ...the Roxbury Neighborhood Zoning
Amendment.'

The RFP received only one response ' from the Muslim Council of Boston (the
'Muslim Council'). It proposed to build on Parcel R-14 an Islamic Center, to be
composed of a large mosque together with a school. The Muslim Council had had
its eye on the site for a few years, since the biggest growth in its membership
had come from the Roxbury community. The Muslim Council's proposal received
overwhelming support from neighborhood groups and individuals, including state
representative Gloria Fox.

On December 22, 1992, the BRA met and voted to accept the Muslim Council as
Parcel R-14's redeveloper.

For the next few years, the project was at a standstill. This was in part
because conventional financing was not available: Islamic law prohibits the
payment of interest. Other developers submitted proposals but none of them was
compatible with the uses contemplated for the site. Then the ISB, in search of
a new home, entered the picture.

2. The ISB Development Proposal and the BRA Process

The ISB first came to the attention of the BRA in August 1998, when the
Muslim Council recognized the ISB as its partner and asked the BRA to
substitute the ISB as the redeveloper of Parcel R-14. The BRA staff considered
the proposal and then recommended to the full Board that the substitution be
approved. In a memorandum to the Board, the BRA's planning director noted that
the ISB had retained two 'highly respected' architects and an environmental
firm, with equity funding to be provided by the United Bank of Kuwait. The
memorandum described the construction of an Islamic institute as 'an historic
and important endeavor' which, if the substitution were approved, could proceed
as was originally envisioned six years before. On October 29, 1998, the BRA
voted to approve the substitution.

Over the next year, the ISB went to work to move the redevelopment project
(the 'Project') forward. A preliminary environmental assessment detected the
presence of petroleum hydrocarbons; the contaminated soil was removed. The ISB
also determined which permits it would have to obtain from the public agencies
(ranging from the Boston Historical Commission to the Boston Transportation
Department) which would necessarily be involved. Finally, the ISB approached
various neighborhood organizations about their concerns and, in response,
developed a list of public benefits that it intended to offer in connection
with the construction of a mosque and community center. These benefits
included, among other things, a proposed collaboration between the ISB and the
College for the development of a research library and a lecture series on Islam
and Islamic law. The ISB also proposed to assist the Roxbury Community College
Foundation (the 'Foundation') with its ongoing fund raising campaigns.

On July 23, 1999, in accordance with the Boston Zoning Code, the ISB
submitted a Project Notification Form which set forth all aspects of the
Project, including the public benefits described above. A notice describing the
Project appeared in the Boston Herald on the same day, inviting public comment
and informing the public where the full text of the Project Notification Form
could be found. The BRA received three comments: from the Boston Water and
Sewer Commission, the City of Boston

Environmental Department, and from Richard Mertens (himself with the BRA)
addressing traffic and air quality impact. Around this same time period, the
ISB set up eight meetings to discuss the project with members of the community.
Some of these meetings were held on the College campus. A BRA staff memorandum
noted that the Project was 'nearly unanimously supported.'

On January 12, 2000, the Project overcame another hurdle when the BRA voted
to issue a Certificate of Compliance 'upon successful completion of Article 80
review.' As a result of that vote, the BRA issued a 'Scoping Determination,'
which invited further public comment. Notice of this decision appeared in the
Boston Herald on February 9, 2000.

Over the next few months, the ISB completed the Article 80 review (required
for large projects), made progress toward finalizing architectural plans, and
provided evidence of equity funding. It also negotiated an agreement with the
BRA (the 'Term Sheet') which set forth the terms under which the ISB would
purchase Parcel R-14 from the City. This Term Sheet stated that the purchase
price would be paid as follows: $175,000 in cash, an additional amount
representing the costs already incurred by the ISB to clean up contamination at
the site ($43,820), and the ongoing provision of certain identified public
benefits (valued at $465,326). These benefits were the same ones which had been
listed in earlier proposals, including the collaboration with the College to
provide a library and lecture series.

On August 10, 2000 following a public meeting, the BRA approved the final
designation of the ISB as redeveloper of Parcel R-14 and more specifically
agreed that it would sell Parcel R-14 to the ISB pursuant to the Term Sheet, to
be incorporated into a Cooperation Agreement between the ISB and the BRA at the
time of closing. The closing was to take place on or before June 30, 2002.
Projected construction costs ran higher than anticipated and, because of a need
to redesign some elements, the ISB requested a six month extension on the
closing date. Mayor Thomas Menino wrote a letter on behalf of the ISB to the
BRA, and a memorandum from a BRA staff member to the Board noted that the
Project continued to enjoy 'wide spread community support.' On

June 20, 2002, the BRA approved the extension.

Over the next several months, the ISB worked directly with officials at the
College, including its President, to finalize details of the benefits that the
ISB would provide. They discussed topics for lecture series, ultimately

concluding that the focus should be on the historical development of Islam on
the African continent, since this was of particular interest to the College's
student population and the surrounding community. On September 25, 2002, the
College and ISB entered into an agreement to provide parking space for the
cultural center. Groundbreaking for the Project took place on November 7, 2002,
and was reported in both the Boston Globe and in the Boston Herald.

The closing on Parcel R-14 ultimately took place on May 16, 2003. By that
time, it had been determined (with the BRA's approval following a public
meeting) that the ISB Trust would be the record holder of the property and sign
the closing documents. The consideration for Parcel R-14 was as described in
the Term Sheet. Adding up the cash payment of $175,000 with the public benefits
and a credit for money that the ISB had already expended on the environmental
cleanup, the consideration exceeded the actual fair market value of Parcel
R-14, stated to be $401,187.50. A Land Disposition Agreement was executed
together with a Quitclaim Deed, recorded with the Suffolk County Registry of
Deeds the same day. The ISB's obligation to provide the public benefits was
also incorporated into a Cooperation Agreement between it and the BRA which was
executed on May 16, 2003 as well.

3. The Activities of the Non-Media Defendants

Absent from any of the public meetings described above were any of the
defendants. Indeed, the Non-Media Defendants contend that none of them even
knew about the proposal to build an Islamic Cultural Center until October 3,
2002, when defendant

William Sapers learned of the Project. Sapers was a member of the Board of
Trustees for the Roxbury Community College Foundation (the 'Foundation'), which
assists the College with fund raising and manages its endowment. At the October
3 meeting, the

College's then-Acting President Randolph Bromery briefed the Foundation
trustees on the Project and on the upcoming groundbreaking (scheduled for the
following month). Sapers laments that, before that date, he and other trustees
had been 'kept in the dark.'

The Project, however, was far from a secret before then. In addition to the
published notices for every meeting of the BRA, the legal notices for every one
of its decisions, the advertisements for community meetings in the surrounding
neighborhood,3 and reports in the local newspapers, there was in 2001 alone
several articles about the Project appearing in national newspapers as well. On
May 19, 2001, the Washington Post, for example, reported on how the Project was
financed, describing the discount given on Parcel R-14 in exchange for certain
services that ISB was to provide to the community, including the College. A
similar article appears in the Christian Science Monitor on May 31, 2001. Two
months before that, the Boston Globe reported the terms of the proposed sale.

When Sapers did learn about the Project, he had what he described as
'concerns and questions.' Of primary concern was Sapers' belief that an
individual by the name of Yousef al-Qaradawi had some association with the ISB
and that Sapers believed him to be an 'extremist' who 'supported suicide
bombings in Israel and Palestine and other terrorist activities.' He asked a
freelance investigative reporter to look into this; this person (not identified
to the Court) responded by faxing him a 2000 tax return for the ISB listing
al-Qaradawi as an ISB member, together with typewritten material (from an
unknown source) purporting to contain excerpts from al-Qaradawi's public
statements. Around the same time, Sapers made calls to an acquaintance on the
Board of Education and to a Foundation employee. Although Sapers asserts that
his concerns also extended to the terms on which Parcel R-14 was to be conveyed
to the ISB by the BRA, he did not then (nor at any time) contact anyone with
the BRA about those concerns, even though the closing on the Project at that
point was six months away.

Sapers raised his concerns at the next Board of Trustees meeting for the
Foundation on November 7, 2002. This was the day after the groundbreaking for
the Project, which was attended by Mayor Tom Menino and United States
Representative Michael

Capuano (who had both voiced their public support of the Project). As
reflected in the minutes, Board president Williams reminded Sapers and other
trustees at the November 7 meeting that their responsibility was to 'raise
funds for the College, its students and programs,' and 'does not extend to
direct involvement in the College's affairs.'

Unhappy with this response, Sapers took the information that he had acquired
from the unidentified reporter and, on November 18, 2002, faxed a letter to
Peter Tye, whom Sapers knew to be a 'close friend' of Mayor Menino. The letter
attached the material Sapers had got from the reporter and said: 'We don't
believe the publicity of a mosque supported by Saudi Arabia and extremist
Yousef al-Qaradawi will be helpful to the Mayor's long-range plans.' Sapers
also sent letters over the next few weeks to the College's Board of Trustees
chairman Phillip Clay, a member of the Board of Higher Education, and the
chancellor for MIT.4 These letters did not elicit sympathetic responses.
Chairman Clay with the College informed Sapers on January 8, 2003 that the
issues concerning land use and Project design were between the ISB and the City
of Boston, not the College. He said that the College would not 'act upon
prejudgments about the [Islamic] Society or Islam' and that, apart from making
sure that the 'public benefits' items connected to the Project conformed to the
'educational mission' of the College, the Board intended to take no further
action in connection with Sapers' concerns. The Board of Higher Education also
wrote Sapers around that same time stating that the Board had no particular
role in the matter.

It was at this point that Sapers' activities in connection with the Project
changed. Rather than continue to press his concerns through the Foundation (or
to go directly to the BRA with his questions), Sapers turned to defendant
Steven Emerson.

As the defendants portray him, Emerson is an award-winning investigative
journalist and leading authority on terrorism and Islamic extremists groups in
America. According to plaintiffs, he is nothing more than a paid polemicist who
promotes his anti-Muslim agenda by disseminating poorly researched and outright
false information about Islamic groups to media representatives for money.

Sapers asked Emerson for assistance in collecting information about members
or former members of the ISB. Emerson and his organization, the defendant
Investigative Project, responded by providing Sapers with a report Emerson
prepared in the summer of 2002 which asserted, among other things, that
plaintiff Kandil had ties to a 'terrorist supporting infrastructure in the
U.S.' Over the next few months, Emerson put together more material about ISB
members. Plaintiffs allege that this material contained false and defamatory
statements about them.

Sapers took the information he obtained from Emerson and got in touch with
Boston Herald reporter Jonathan Wells. Over the next few months, Sapers and
Emerson were in frequent contact with Wells. Wells in turn used the material he
received from Sapers and Emerson to write a series of stories about the ISB and
the Project, the first of which appeared in the Boston Herald on October 28,
2003. These newspaper reports, which asserted that the ISB was directly
connected to and funded by radical terrorist organizations, lie at the heart of
the plaintiffs' defamation claim. As to Sapers' and Emerson's role in those
published reports, the plaintiffs allege that they served as anonymous sources
for Wells and knowingly gave him and other reporters false information about
the plaintiffs, including information that the ISB funded the terrorist groups
of Hamas and Hezbollah, and that the plaintiff Kandil was connected to
terrorist training camps and Osama bin Laden.

At the same time, Sapers continued to use his contacts in the mayor's office
to press his agenda. He forwarded one of the Herald articles to the mayor via
e-mail with the heading: 'CAN'T BELIEVE YOU PRAISED THESE TYPE OF PEOPLE!!!' In
January 20, 2004, he wrote to Tye again, beginning his letter by warning Tye
that more articles would soon be appearing in the Herald questioning the
Mayor's position on the Project. At the same time, he addressed a separate
letter to Menino warning that 'as more of this story appears, you and the City
of Boston could be very embarrassed.' Although Menino did ultimately raise
questions about the Project, the deal had been consummated six months before
with the sale of Parcel R-14 to the ISB. There was no ongoing governmental
process which could stop it at that point.

In May 2004, Sapers joins forces with defendant Kolodner, who is director of
the David Project, as well as with as the remaining Non Media Defendants.
Initially, they referred to themselves only as the 'ad-hoc mosque group.' At a
first meeting of the group on May 24, 2004 (attended by reporter Wells also)
defendant Cohen circulated a document entitled 'Preliminary Agenda' which
states that the group will conduct a 'political and media campaign' against the
Project. This theme continued in additional meetings. For example, on September
2, 2004, defendant Kolodner e-mailed members of the group about the 'need to
develop a media campaign and...develop a presentation that can be used with
media, politicians, and community groups.' Wells continued to worked closely
with the group, sharing information about the ISB and its members ' information
which the plaintiffs say was false.

In addition to a media campaign, this group also discussed a legal challenge
to the BRA/ISB transaction. They located an appropriate plaintiff (none of the
Non-Media Defendants lived or worked in the neighborhood of Parcel R-14 and
therefore had no standing) and the suit, Policastro v. BRA, Civ. No. 04-74292
was ultimately filed in Suffolk Superior Court in September 2004. This lawsuit
(brought some sixteen months after the BRA sold Parcel R-14 to the ISB)
challenges the terms of that sale ' specifically, the values attached to the
public benefits offered by ISB to the College and the overall price at which
Parcel R-14 was sold. It also raised a constitutional question about
entanglement between church and state. As described in an e-mail, however,
defendant Kolodner expressed the hope that this lawsuit 'will trip the switch
of the larger agenda of exposing the radical fundamentalist underpinnings of
the Mosque and its leaders' and would assist the group in its effort to
'develop a media campaign' against the Project.

In October 2004, defendants Cohen, Hale and Mansour incorporated an
organization called the 'Citizens for Peace and Tolerance,' ('CPT') which had
as its stated goal the 'education of the community about events that may
threaten it' ' more specifically, the ISB's plans to build a mosque near the
College. On the CPT website were direct links to the Herald articles. A press
release to announce CPT's formation stated that it was concerned that the ISB
and its plan to build an Islamic Center 'may be part of a global and national
effort by radicals and extremists to control mosques and radicalize their
communities.' Defendant Hale simultaneously approached various media outlets,
including the Boston Globe and CNN, and appeared on the '700 Club' television
program. He and other CPT members held press conferences denouncing ISB and its
members and former members, making statements which the plaintiffs allege are
false.

By this time, defendant Wells had moved from the Boston Herald to Fox-TV. In
the fall of 2004 (picking up on CPT's activities) Fox ran a series of reports
about the ISB and the mosque ' reports which the plaintiffs allege are false
and defamatory.

Among other things, the broadcasts stated that ISB members were also members
of the 'oldest radical Islamic organization in the world, the Muslim
Brotherhood,' described as 'the grandfather of Islamic terrorism.' A November
16, 2004 broadcast began by stating that this 'deadly' organization had
'arrived here in Boston' in the form of the ISB. This international
organization (it was stated in the TV reports) had started 'some of the most
notorious terrorist groups' in the world, including Al Qaeda and Hamas. The
Non-Media Defendants remained in close contact with Wells throughout this
period and (it is alleged) assisted him and cooperated with him in the
preparation of these broadcasts. Some of the defendants also appeared on
Fox-TV, making statements of their own about the ISB. For example, Mansour
stated that the ISB belonged to the Muslim Brotherhood and therefore was part
of a 'very dangerous culture' which dealt with the rest of the world 'with
violence and in the name of Jihad.' Plaintiffs allege that these news reports
were the 'product and result' of the defendants' coordinated media campaign.

Presently, the mosque remains unbuilt, but not because of any governmental
process. Although a few public officials did, in response to the media reports,
publicly express concern about the Project, this Court is unaware of any
ongoing governmental proceedings pertaining to the Project, other than the
Policastro suit. In 2004, a City Councillor called for a hearing about the
Project before the Council's audit committee and the Mayor said that he would
review it, but there is no evidence before this Court that this led anywhere.
More recently, Jeffrey Robbins, an attorney for several defendants in this
case, urged City Council to take up the matter again; this Court is not sure
what resulted from this post litigation effort. Although the BRA continues to
have some oversight over the Project, this is simply to monitor compliance with
the terms of the land sale and the agreements executed in conjunction with that
sale. Because there is no indication of any noncompliance, the BRA has taken no
action.

The plaintiffs allege that the Project came to a halt because of the very
public attack mounted by the defendants on the ISB and its members. According
to the plaintiffs, people are afraid to donate to or in any way support the
building of the cultural center for fear of being labeled terrorist
sympathizers. This alleged damage to the plaintiffs' reputation ' and the
economic consequences of their public vilification ' constitute the harm for
which they seek compensation by this lawsuit. The question before this Court is
whether it should be able to proceed beyond the filing of a Complaint.

DISCUSSION5

The Anti-SLAPP statute was enacted in 1994 to deter the use of litigation
against individual citizens who, by virtue of their participation in
governmental processes, become the targets of expensive lawsuits designed to
punish them for their petitioning activity. One lawsuit in particular appeared
to have been the impetus for the legislation. In 1991, a group of residents
from Rehoboth, acting out of a concern for wetlands, signed a petition opposing
a permit to build single family residences. The developer sued, and the
residents were forced to incur $30,000 in legal fees before the suit was
ultimately dismissed. Concerned about the strategic use of baseless lawsuits
like the Rehoboth litigation, the Legislature passed G.L.c. 231 '59F, which
very broadly defines the kind of petitioning activity to be protected.
Specifically, the statute states that the 'right to petition' includes any
written or oral statement made 'in connection with' an issue under
consideration or review by a governmental entity, any statement 'reasonably
likely to encourage' such consideration or review, and any statement
'reasonably likely to enlist public participation in an effort to effect such
consideration.'

If these words were taken literally, then the statute would, as the Supreme
Judicial Court noted in the leading case of Duracraft Corp. v. Holmes Products
Corp., 427 Mass. 156, 161 (1998), alter procedural and substantive law in a
'sweeping way.'

In addition, a broad definition of 'petitioning activity' would have the
unintended effect of preventing plaintiffs from exercising their own rights to
petition the government ' specifically the court system ' for redress of a
perceived legal wrong. Although the legislature did attempt to limit the reach
of the statute by permitting the non movant to avoid dismissal upon a showing
that the moving party's petitioning activities were 'devoid of any reasonable
factual support or any arguable basis in law,' the SJC noted that this did
little to separate out meritorious suits from frivolous ones. Accordingly, in
order to avoid a constitutional issue, the SJC held that the statute must be
construed to protect only those parties who can first demonstrate that the
claims against them are 'based on their petitioning activity alone and have no
substantial basis other than or in addition to the petitioning activities.'
Duracraft, 427 Mass. at 167-168 (emphasis added). Without that threshold
showing, the question of whether the petitioning activity itself has merit need
not be reached at all.

Subsequent appellate decisions have further defined what constitutes
'petitioning activity' and have also provided guidance as to what must be
established by a special movant under Duracraft's holding. The following
principles can be gleaned from those cases. First, the special movant must
demonstrate that the conduct being challenged by the plaintiff was made in the
context of and in order to influence the outcome of a governmental proceeding,
or to obtain review from a governmental entity.

Thus, for example, in Global NAPs, Inc. v. Verizon New England, Inc., 63
Mass.App.Ct. 600 (2005) it was held that the defendant's allegedly defamatory
statements made to a newspaper that the plaintiff's operation was in essence a
'scam' did not constitute petitioning activity, because it was not an integral
part of the ongoing legal proceedings between the parties (in that case, the
appeal of an arbitration decision) nor was it made to advance any issue
involved in those proceedings. Rather, the statements were 'tangential' to the
legal proceedings, 'intended at most to influence public opinion in a general
way unrelated to the government involvement.' Id. at 607. Second, the purpose
of the defendant's activity must be to seek redress from the government on his
own behalf as a citizen. It was held that this requirement was not satisfied in
Kobrin v.Gastfriend, 443 Mass. 327 (2005), where the challenged conduct
involved statements that the defendant psychiatrist made about the plaintiff in
an affidavit to the Board of Registration in Medicine. Although the affidavit
was submitted to a governmental body, the defendant made the statements in his
capacity as an expert hired by the Board, not in order to seek redress from the
government himself. Third and perhaps most important, if some portion of the
complained of conduct does not fall within the definition of petitioning
activity, then the action should not be dismissed. Illustrative of this
requirement is Garabedian v. Westland, 59 Mass.App.Ct. 427 (2003) where the
plaintiff had sued a group objecting to work the plaintiff was doing on an
airstrip and hangar in their neighborhood. The neighbors had complained to
state and local officials, protested at city hall and organized public
meetings; they had also engaged, however, in intrusive surveillance of the
construction and harassed the plaintiff's building contractor. Noting that this
latter conduct 'involved no supplication to higher authority' within the
government, the Appeals Court held that the Anti-SLAPP statute did not apply
because the plaintiff's complaint was not based solely on the neighbors'
petitioning activities. Id. at 432-433. See also Ayasli v. Armstrong, 56
Mass.App.Ct. 740, 748 (2002).

Applying these legal principles to the case before me, this Court concludes
that the Non-Media Defendants have failed to meet their burden of showing that
the subject matter of the plaintiffs' claims is based solely on the defendants'
'petitioning activity' as that term has been defined by the case law. The
Amended Complaint takes primary aim at the Non-Media Defendants for their
statements to the media, not to any governmental representative. It is alleged
that they conspired with the media to spread false and defamatory information
about the ISB in order to turn public opinion against it, not to influence any
particular governmental proceeding. Clearly, the media defendants cannot claim
the protections of the Anti-SLAPP statute. Assuming plaintiffs will be able to
prove their allegations of a conspiracy, then it is difficult to understand why
the 'Non-Media' Defendants can claim such protection simply by asserting their
status as private citizens.

More significantly, the complained of conduct occurred at a time when there
was no ongoing government proceeding. The BRA, the only governmental agency
involved in this Project, had already closed on the deal by conveying Parcel
R-14 to the ISB.

At no time, either before or after that conveyance, did the defendants speak
to a BRA representative or participate in any of its public hearings. That, as
a result of the media campaign, some individuals within the government
(including Mayor Menino and Representative Capuano) expressed some concerns
about the ISB does not thereby convert everything that the Non-Media Defendants
did before that into petitioning activity. 'That a statement concerns a topic
that has attracted government attention in itself does not give that statement
the character contemplated by the statute.' Global NAPs, 63 Mass.App.Ct. at
605. Otherwise, virtually any activity relating to a matter of public interest
could be considered 'petitioning activity' ' a construction of the Anti-SLAPP
statute which would not accord with the SJC's holding in Duracraft.

It is true that some Non-Media Defendants did at various points contact
government officials other than those at the BRA (for example, the Mayor and
City Council), but these contacts are not the sole basis for the plaintiffs'
Complaint, which focuses far more on the Non-Media Defendants' relationship
with the media and their part in news reports about the plaintiffs. As noted
above, the movants must demonstrate that the complaint is based solely on their
petitioning activity; if some part of the complained of conduct does not fall
within the definition of petitioning activity, the action should not be
dismissed. Moreover, the defendants' activities did not result in any
governmental investigation actually being undertaken. A City Councillor called
for a hearing, but this went nowhere (the Council's jurisdiction over the
Project being questionable at best). Although the defendants state in their
papers that Representative Capuano 'publicly called upon' the U.S. Treasury
Department to look into the ISB following the Herald reports about the Project,
there is no evidence before this Court that any federal investigation of the
ISB or its members was begun. Rather, these statements by public officials
appear to be only that: statements made for the benefit of the public following
inflammatory news reports which any politician would be foolish to ignore.

The defendants point out that whether conduct is 'petitioning activity' does
not turn on whether their efforts in obtaining government review were
successful. This Court agrees. However, the problem with the defendants'
position in this case is not just that they were unsuccessful in generating
governmental review but that their complaints were not of the sort capable of
being reviewed by any governmental agency at all. The issues that Sapers and
others raised ' that ISB members embrace a radical theology, for example, hold
extremist views inconsistent with Western values, or have connections with
specific individuals identified as terrorists ' are not matters that can be
resolved by a governmental agency, at least not by the City Council of Boston
or its Mayor, to whom the Non-Media Defendants claim they directed their
efforts. In short, this Court fails to see the connection between the allegedly
defamatory statements of the Non-Media Defendants which are the subject of this
lawsuit and any issue which was either the subject of governmental review or
was capable of being reviewed by a governmental agency.6

The Non-Media Defendants argue that they were instrumental in having the
Policastro litigation instituted, and that this lawsuit (itself a proceeding
before a branch of the government) raises objections to the Project concerning
the terms of the sale ' matters which are subject to redress by a court. The
plaintiffs point out, however, that none of the Non-Media Defendants are
parties in that lawsuit. Because they are not themselves seeking redress from a
court on their own behalf (apparently having no standing to do so in the
Policastro matter) it is difficult to see how their behind-the-scenes support
of that lawsuit converts everything they did into petitioning activity. More
important, a fair reading of the Complaint suggests that this suit is only one
small part of plaintiffs' grievances ' and under Duracraft, that is not enough.
The statements which are the subject of the defamation claim in particular do
not so much concern the terms of the sale of Parcel R-14 as they do the
purported association of ISB members and former members with terrorist
organizations (an association with the ISB denies).

In an attempt to meet the requirement that 'petitioning activity'
constitutes the sole basis for the plaintiffs' Complaint, the Non-Media
Defendants downplay the statements that they made to media representatives,
characterizing them as 'mirror images' of the statements that they were making
to individuals connected to the government. They rely in particular on a recent
Appeals Court decision, Wynn v. Creigle, 63 Mass.App.Ct. 246 (2005). In that
case, the defendant, the widow of a firefighter, had pending before the
governor a petition for benefits which had been the subject of an ongoing fire
department investigation. She then provided a newspaper with documents
introduced at the hearing on those benefits, and made certain statements which
were essentially identical to those which she had made in order to advance her
benefits request. The Appeals Court held that, because her statements to the
newspaper were 'mirror images' of those already made in the course of the
government's investigation of her claim and were 'tied to and in advancement
of' her petition for benefits, the Anti-SLAPP statute required dismissal.

In the instant case, the chronology of events ' and the activity which forms
the basis for the plaintiffs' complaint ' are quite different. The only ongoing
government proceeding in existence when the Non-Media Defendants (beginning
with Sapers) first engaged in the activities which are the subject of this
lawsuit was the BRA proceedings, in which no defendant played any part. The
government officials which Sapers had contacted in 2002 and early 2003 had
rebuffed him, stating that review of the Project was not their role. Sapers
then turned to defendant Steven Emerson and the Investigative Project to
collect information about the ISB ' information which Sapers and Emerson then
funneled (as anonymous sources) to the media. Thereafter, they and other
Non-Media Defendants (it is alleged) worked closely with reporters from the
Herald and from Fox-TV behind the scenes in order to publicly brand the ISB as
a terrorist organization. That the defendants then took the reports about the
plaintiffs which the media had generated with their assistance and forwarded
them on to government officials does not thereby convert their media activities
into petitioning activities. That would be the equivalent of concluding that
the tail wags the dog.

In the final analysis, to accept the defendants' arguments and conclude that
the conduct which is the subject of this litigation constitutes ''petitioning
activity' shielded by the Anti-SLAPP statute would essentially obliterate the
tort of defamation and unfairly tip the scales so as to impinge upon the
plaintiffs' right to themselves petition the government for relief. As the
Supreme Court held more than two decades ago, the right to petition is 'cut
from the same cloth' as the other guarantees of the First Amendment. Although
that right is an important aspect of self government, 'it does not follow that
the Framers of the First Amendment believed that the Petition Clause provides
absolute immunity from damages for libel.' McDonald v Smith, 472 U.S. 479, 485
(1985). The instant case not only involves a claim for libel but it also
touches on the right to the free exercise of one's religion: the Complaint not
only alleges that the Non-Media defendants made knowingly false statements
about the plaintiffs but also asserts that they were targeted because they were
Muslim, in violation of their civil rights. To prevent them from pursuing
relief at this early juncture without a more compelling showing on the part of
the defendants that they are being sued solely because of their petitioning
activity would come dangerously close to applying G.L.c. 12 '59H in an
unconstitutional manner.

CONCLUSION AND ORDER

For all the foregoing reasons, and for other reasons articulated in the
plaintiffs' Oppositions to these Motions, the Special Motions to Dismiss under
the Anti-SLAPP statute are DENIED.

Janet L. Sanders

Justice of the Superior Court

Dated: July 20, 2006

Footnotes

1. Jonathan Wells, Jack Meyers, Thomas Mashberg, Maggie Mulvilhill, Kevin
Wisniewski, Fox Television Stations, Inc., d/b/a WFXT-TV, Michael Beaudet, The
Investigative Project, Inc., Steven Emerson, William R. Sapers, The David
Project, Inc., Anna Kolodner, Citizens for Peace and Tolerance, Inc., Steven A.
Cohen, Dennis Hale, and Ahmed Mansour.

2. Although this Court has attempted to state the facts in this section only
to the extent that they are documented in the record before the Court, these
motions are made as motions to dismiss, without the plaintiffs having been
afforded discovery.

Therefore, to the extent there are significant disputes of fact or the
evidence provides a basis for different inferences, this Court construes the
evidence relevant to this Court's conclusions in a light more favorable to the
plaintiffs.

3. That none of the Non-Media Defendants knew of the public meetings is not
entirely surprising, since there is no evidence before this Court that any of
them live or work in the neighborhood where Parcel R-14 was located. Two of the
community meetings held by ISB took place at the College, but Sapers denies
knowing about these meetings (illustrating just how limited Sapers' role was in
College affairs).

4. Only the letter sent to the MIT chancellor was produced for this Court.
That letter says only that 'I do not understand why the Trustees of Roxbury
Community College have not disassociated themselves from the Islamic Society of
Boston' and alludes to material attached to the letter concerning Qaradawi '
apparently the same material Sapers had obtained from the freelance reporter.

5. Legal memoranda submitted by the parties in this case exceed 300 pages.
To say the least, they are thorough, citing every court decision conceivably
relevant to the issues before the Court. They are also well reasoned.
Ultimately, this Court found the plaintiffs' arguments to be more persuasive.
Without attempting to cover every single point raised by the parties, I
summarize in this Memorandum of Decision what I found to be the most compelling
of the arguments advanced.

6. The plaintiffs argue that to see the defendants' conduct as simply
'speaking publicly on a development project' (as the defendants characterize
it) would be the equivalent of saying that an abutter opposed to a subdivision
is engaged in ' 'petitioning activity' where he tells the media that the
developer is a child molester. Because the grievance bears no relationship to
what might be reviewed by the zoning board, it does not come within the purview
of the Anti-SLAPP statute. While this analogy may be a bit extreme, the point
is a good one: there is no clear relationship here between the Non-Media
Defendants' allegations about the ISB and any particular governmental
proceeding that could be undertaken.