On November 10, 2020, Governor Cuomo signed into law a robust expansion to New York’s existing anti-SLAPP legislation, in a significant effort to curb lawsuits filed with the goal of intimidating and suppressing free speech. Amending New York’s current statute—Sections 70-a and 76-a of the New York Civil Rights Law—the law addresses the problem of “strategic lawsuits against public participation,” which threaten burdensome, costly, and time-consuming litigation in order to chill defendants’ speech.
Although New York has had anti-SLAPP legislation on the books since 1992, its provisions were narrow, protecting only against lawsuits brought by a “public applicant or permittee” against defendants who had spoken out against an application or permit, such as a real estate developer that sued a citizen who opposed a project. Under the prior enactment, free speech in a broader context was unprotected, leaving defendants who work within the media or entertainment fields without much recourse against speech intimidation suits, a particularly troubling oversight for the nation’s media capital.
However, the signing of the new legislation, which passed the New York legislature in July, broadens New York’s approach considerably, bringing it into line with a growing number of states, including California, Nevada, Georgia, Colorado, Oregon, Louisiana, Tennessee, and Oklahoma, as well as Washington D.C., that have also worked to enact or strengthen anti-SLAPP laws. New York’s law now covers any speech or other lawful First Amendment conduct that relates to an issue of public interest. The law specifically applies to “any communication in a 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 law commits to broad speech protection, providing that “public interest” should be broadly construed to mean any subject other than a purely private matter.
In practice, the New York law provides defendants an effective, powerful tool by allowing them to file an anti-SLAPP motion to dismiss. Upon such a motion, the court must stay discovery, as well as pending hearings and motions while it makes its determination, although a court may order limited discovery to allow a plaintiff to respond to the motion. During this time, a court must also consider supporting and opposing affidavits—meaning that a defendant need not solely base his or her motion to dismiss on the pleadings or items for judicial notice—and a court must grant preference in the hearing of the anti-SLAPP motion. A judge must dismiss a case where a defendant has shown that the claim surrounding his or her speech or conduct lacks “a substantial basis in law or is [not] supported by a substantial argument for an extension, modification or reversal of existing law.” In such cases, the plaintiff must cover the defendant’s legal fees. These provisions undercut the luster of SLAPP lawsuits in the first instance, as defendants can potentially stop a case early in its tracks—filing a motion to dismiss prior to discovery, in fact—and saddle plaintiffs with mandatory fees, should the motion be successful.
Although it remains to be seen how the law will be interpreted and carried out by New York courts in practice, other states with similar anti-SLAPP laws provide some guidance. For instance, other states to consider the meaning of “public forum” under their legislation have extended the designation to websites accessible to the public, as well as blogs and email listservs. California courts have held that determining whether a communication has been made in connection with an issue of public interest requires a consideration of the context of the statement, as well as its content. Litigants in other states have invoked anti-SLAPP statutes in a wide variety of cases, from business disparagement and tortious interference with contract or business relations to false light, false advertising, malicious prosecution, intentional and negligent infliction of emotional distress, and breach of contract.
One of the bill’s drafters commented that it was indeed President Trump who had provided an impetus for the bill, considering his history of filing frivolous lawsuits against critics, in order to harass, intimidate, and bankrupt them. With the law’s signing this November, New York is poised to curb such meritless litigation and may serve as a model for other states, as it ascends the ranks to have one of the strongest anti-SLAPP laws nationwide.