Making Free Speech Free: New York’s New Anti-SLAPP Law
Over the past decade, states across the country have been enacting and strengthening their anti-SLAPP laws. “SLAPP” is short for “Strategic Lawsuit Against Public Participation,” and anti-SLAPP laws are designed to strengthen First Amendment protections and combat lawsuits typically brought against journalists and media companies by the subjects of their reporting. (For example, Donald Trump is famous for bringing SLAPPs.)
Despite being the media capital of the country, New York has long had very weak anti-SLAPP laws. However, on November 10, 2020, Governor Cuomo signed into law legislation that significantly strengthens New York’s existing anti-SLAPP law (Civil Rights Law § 76-a). The original bill was sponsored by Senator Brad Hoylman and Assemblywoman Helene E. Weinstein.
Strong anti-SLAPP statutes typically have a number of features, the most important of which is a provision permitting defendants—again, often journalists and media companies—to make an early motion to dismiss the plaintiff’s claims where the case involves speech on a matter of “public concern.” The plaintiff then has the burden of showing they will likely prevail in the suit—and, if the plaintiff cannot do so, the suit is then dismissed, with the defendant entitled to recoup their attorneys’ fees from the plaintiff.
These crucial provisions--permitting early dismissal and entitling defendants to recover their fees--ensure that speech remains free and unencumbered and that journalists and others are not forced into lengthy and expensive litigation. New York’s new anti-SLAPP law has these essential features: While defendants used to be able to recover their attorneys’ fees only at the discretion of the court, the new law makes the recovery of those fees mandatory, once the defendant has prevailed on its anti-SLAPP motion.
In addition, among other things, the new law also:
Provides for a stay of discovery while the defendant’s motion is pending, preventing defendants’ resources from being bled dry during the (often very costly) discovery process.
Significantly expands the claims that are subject to anti-SLAPP protections. Previously, New York’s anti-SLAPP law was of very limited applicability, applying near-exclusively to claims “brought by a public applicant or permittee” and “materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.” In other words, the anti-SLAPP protections were effectively limited to defendants who were sued by a plaintiff for challenging or criticizing the plaintiff when the plaintiff was applying for (say) a zoning permit or some other type of government license. Now, however, the law applies to “any communication in a place open to the public or a public forum in connection with an issue of public interest,” and “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest.” The bill also defines public interest broadly, as anything other than a “purely private matter.”
Provides that, in bringing a motion to dismiss, defendants can rely not only on the Plaintiff’s pleadings and judicial notice—which is the typical rule for a motion to dismiss, with some exceptions—but may also submit affidavits and declarations of their own.
For more reading on anti-SLAPP laws, be sure to check out the Public Participation Project’s website. The ACLU also has some great resources.