In November 2020, New York expanded its free speech protections through a new anti-SLAPP law. The statute seeks to deter lawsuits against parties who speak out on an issue of public interest when the purpose of the suit is to discourage individuals from exercising their First Amendment rights. Both sides should pay careful attention to the law since it gives defendants broader grounds to dismiss the case early and recover attorneys’ fees.
WHAT IS A SLAPP LAWSUIT?
SLAPP stands for “Strategic Lawsuits Against Public Participation.” These strategic lawsuits must have no substantial basis in law. SLAPP actions are often brought against journalists, activists, media and entertainment companies and others that criticize a plaintiff regarding an issue of public interest. Anti-SLAPP statutes protect free speech by discouraging plaintiffs from filing baseless lawsuits.
CHANGES TO NEW YORK’S ANTI-SLAPP LAW
Despite New York’s status as a media capital, its former anti-SLAPP law applied to a limited number of disputes. In practice, these cases were often related to real estate development. An individual or company would file an application to develop real estate and others would report on, or challenge, the application. The developer would then bring a suit against these critics, hoping they would be silenced by high costs of defending a lawsuit.
The old statute also gave courts discretion to award legal fees, meaning even if the defendant was successful in dismissing the lawsuit, the court was not required to award attorneys’ fees to the prevailing defendant.
In 2020, New York amended its anti-SLAPP law. It is much broader in scope and provides greater First Amendment protections.
The updated anti-SLAPP law applies to the following types of claims:
- any communications in a public place open to the public or a public forum in connection with an issue of public interest; or
- any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition
The term “public interest” is construed broadly and means “any subject other than a purely private matter.” Whether the relevant speech is an issue of public interest or not is fact specific. For example, a federal court interpreting this new law ruled that an email and letter addressing “sexual impropriety and power dynamics in the music industry” was an issue of public interest because the communications were sent in November of 2017 against the backdrop of the #MeToo movement. See Coleman v. Grand, No. 18-CV-5663, 523 F. Supp. 3d 244, 259 (E.D.N.Y. Feb. 26, 2021), appeal docketed, No. 21-800 (2d Cir. Mar. 26, 2021). This case is currently on appeal.
Similarly, a New York State court interpreted the amended law to protect a negative online review about plastic surgery services on Yelp.com, holding that “medical treatment rendered by a physician’s professional corporation and the physician performing surgery under its auspices” is a matter of legitimate public concern. Aristocrat Plastic Surgery, P.C. v. Silva, 206 A.D.3d 26, 32 (1st Dep’t 2022).
Another New York State court held that a news article titled “Brooklyn developer accused of swindling vulnerable homeowners” published alongside a photograph of the developer was a matter of public concern, reasoning that real estate transactions, issues of fraud and deceptive practices fall within the updated law’s expanded definition of public interest. See Golan v. Daily News, L.P., 2022 NY Slip Op 22314 (N.Y. Sup. Ct. 2022). In both New York State cases, the courts held that the alleged defamers were entitled to damages and attorney fees because the communications fell within the ambit of the amended anti-SLAPP law.
HOW DOES THE updated ANTI-SLAPP LAW WORK?
If a defendant believes that the lawsuit brought against them is a SLAPP lawsuit, they may file a motion to dismiss the action. In support of an anti-SLAPP motion to dismiss, the defendant must provide proof that the claim relates to the defendant’s exercise of their free speech rights “on a matter of public interest.” Defendants can submit documentary evidence and sworn statements in support of their motion, allowing them to obtain an early dismissal of the lawsuit.
Once the defendant provides evidence that the anti-SLAPP law applies, the burden of proof shifts to the plaintiff. If the plaintiff then cannot show that the claim has a “substantial basis in law” or is supported by a “substantial argument” to modify existing law, the suit will be dismissed. “Substantial basis” is not defined in the statute.
While the motion is being decided by the court, the discovery process of the case is paused. Discovery involves the collection and exchange of documents and testimony, including depositions, and is very expensive. The purpose of the discovery hold is to stop these expenses from being incurred while the court decides whether to grant defendant’s motion to dismiss the case.
WHAT ARE THE CONSEQUENCES OF FILING A LAWSUIT TO PREVENT FREE SPEECH?
If the plaintiff fails to meet its burden of proof to show that the claim has a substantial basis in law, the action will be dismissed. The plaintiff will also be required to pay the defendant’s attorney’s fees and other litigation costs.
Additionally, defendants may be entitled to “other compensatory damages” if they prove that the plaintiff brought the case to harass, intimidate, punish or maliciously inhibit free speech, petition, or association rights. Compensatory damages compensate the defendant for any other harm they suffered. Punitive damages also may be available where the plaintiff brought the case “for the sole purpose” of harassing, intimidating, punishing or maliciously inhibiting free speech, petition, or association rights.
HOW DO COURTS IN NEW YORK APPLY THE UPDATED ANTI-SLAPP LAW TO PRE-EXISTING DEFAMATION SUITS?
The answer: it depends. Currently, there is a split on this issue between the federal and state courts.
The Federal Cases
Palin v. New York Times Company was one of the earliest decisions on the updated law’s application to existing litigation in federal court. 510 F. Supp. 3d 21 (S.D.N.Y. 2020). In Palin, Southern District of New York Judge Jed S. Rakoff held that the new anti-SLAPP law applied retroactively to the pending action. Id. at 29. Therefore, even though the lawsuit was initiated by Sarah Palin before the anti-SLAPP law was amended, the law still applied to her case.
Eastern District of New York Judge Eric N. Vitaliano followed suit in Coleman v. Grand and held that “clear legislative expressions of remedial purpose and urgency give the amendments retroactive effect.” 523 F. Supp. 3d 244, 258 (E.D.N.Y. Feb. 26, 2021), appeal docketed, No. 21-800 (2d Cir. Mar. 26, 2021). Finding that the New York amended anti-SLAPP law applied, the plaintiff was required to prove that the defendant “acted with actual malice because [plaintiff brought] a claim based upon lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest.” Id. at 254 (citing the amended N.Y. Civ. Rights Law § 76-a(1)(a)). This case is currently on appeal.
Eastern District of New York Judge Rachel P. Kovner also upheld the retroactive application of the anti-SLAPP amendment in Goldman v. Reddington and granted the defendant leave to amend her initial response – filed before the change to the law – to include an anti-SLAPP counterclaim and affirmative defense. No. 18-CV-3662, 2021 U.S. Dist. LEXIS 171340 (E.D.N.Y. Sep. 9, 2021). Judge Kovner found that the defendant, who accused the plaintiff of rape on social media, had adequately pleaded that her posts were a matter of public interest under the new anti-SLAPP statute. Id at *10.
The State Cases
On the other hand, New York State courts have come to the opposite conclusion, holding that the new anti-SLAPP amendment does not apply retroactively.
In Gottwald v. Sebert, popstar Ke$ha sought to amend her answer to her music producer’s defamation claims against her to include an anti-SLAPP counterclaim under the amended law. While New York Supreme Court Judge Jennifer G. Schecter first entered an order granting Ke$ha’s leave to amend, the Appellate Division, First Department, reversed, holding that the new anti-SLAPP law could only apply prospectively to claims initiated after the change in the law. Gottwald v. Sebert, 165 N.Y.S.3d 38 (1st Dep’t 2022). In reversing Gottwald, the state court reasoned that there was insufficient evidence to support retroactive application of the anti-SLAPP amendments, recognizing the federal court’s holding in Palin as “nonbinding.”
Since Gottwald, decided in March 2022, several decisions in New York State courts have upheld this interpretation of the anti-SLAPP amendment. See e.g., Cisneros v. Cook, 2022 NY Slip Op 05784 (1st Dep’t 2022); Kurland & Assocs., P.C. v. Glassdoor, Inc., 166 N.Y.S.3d 847 (1st Dep’t 2022); Robbins v. 315 W. 103 Enters. LLC, 164 N.Y.S.3d 823 (1st Dep’t 2022); Goldberg v. Urbach, 2022 WL 1285452, at *1 (Sup. Ct. N.Y. Cnty. 2022).
However, Ke$ha has moved to reargue the First Department’s decision or file an appeal with the New York Court of Appeals. Her position is supported by multiple amici, including Senator Brad Hoylman, who co-authored the 2020 amendments to New York’s anti-SLAPP law. In May 2022, Senator Hoylman introduced a new bill to further amend the anti-SLAPP law and explicitly state that the law applies retroactively. Therefore, there may be legislative changes ahead that resolve the split among state and federal courts, although only time will tell.
Plaintiffs considering defamation actions must be careful to not run afoul of the new anti-SLAPP law. Even if they are defamed, the risk of having a suit challenged on the basis of being one against public participation can cause them to both lose the case and pay their adversaries’ attorneys’ fees and costs. From defendants’ perspective, they now have a useful tool to challenge these actions and protect their free speech rights, but a strong case must be presented.
If you are facing a possible SLAPP action or bringing a defamation action, it is important to consult experienced counsel to evaluate the strength of your claim or defense. Contact the team at Romano Law for next steps.
[This blog post has been updated from a previous version, published August 12, 2021]
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