New York’s Amended Anti-SLAPP Statute

New York has amended and significantly improved its anti-SLAPP statute. The November 2020 amendments bring New York in line with a number of jurisdictions, such as California, Washington D.C., Oregon, Texas, and Tennessee, that have adopted broad anti-SLAPP protections backed by mandatory sanctions for SLAPP-filers.

New York’s new anti-SLAPP law remedies an important practical shortcoming in the First Amendment’s protections: litigious bullies can use the courts to silence protected speech by threatening frivolous litigation or imposing litigation costs that a defendant must endure even if a lawsuit lacks merit. New York’s anti-SLAPP law addresses this problem by enabling those targeted by SLAPPs to dismiss them more easily and recover attorneys’ fees and costs incurred in defending against them.

What follows is a quick background on New York’s prior law, a summary of the key features of the new law, and recommendations for improving the law further.

New York’s Former Anti-SLAPP Statute

Prior to the 2020 amendments, New York’s anti-SLAPP statute, which was originally enacted in 1992, provided largely ineffectual protections in a narrow and arbitrary category of circumstances. Specifically, New York's anti-SLAPP statute only offered protection against SLAPPs pertaining to a plaintiff’s fitness to seek or hold a “permit, zoning change, lease, license, or other permission from any government body.” For instance, in one case, a tenant organizing group successfully invoked the anti-SLAPP law when sued by a landlord for reporting housing code violations, on the theory that reporting housing code violations amounted to a challenge to the landlord’s fitness to hold certificates of occupancy and receive rental subsidies, among other benefits. New Line Realty Corp. v. United Comms. of Univ. Heights, No. 1021/2004, 2006 N.Y. Misc. LEXIS 2872 (Sup. Ct., Bronx Co. 2006).

But due to the narrow and odd definition of protected activity in the old statute, successful invocations of the anti-SLAPP law were rare. SLAPPs occur in a variety of contexts that do not involve permitting processes. For instance, SLAPPs against #MeToo survivors and against online consumer reviewers were not covered under the old statute. Most political activism, another common target of SLAPP litigation, does not concern permits. Neither does most journalism.

To make matters worse, under the old law, even if a defendant prevailed on an anti-SLAPP motion, she often could not recover the attorney’s fees incurred for her defense. In SLAPP cases, the most crucial remedy is the award of attorney’s fees, which are designed to reimburse prevailing defendants for the expense of defending a lawsuit and enable them to access contingency-based legal representation. Under the old statute, attorney’s fees were awarded at the discretion of the court, which in practice meant that they were usually not awarded. And to obtain other forms of monetary relief, one had to file a separate lawsuit, likely an unappealing option to someone who was uninterested in participating in litigation in the first place.

 New York’s New Anti-SLAPP Statute

The new law provides stronger and broader protections. Several new features are notable:

(1)   Broader definition of protected activity. The law now protects “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, or in furtherance of the exercise of the constitutional right of petition.” N.Y. Civ. Rights Law § 76-a(1). This definition is comparable to California’s. And judging from a review of California anti-SLAPP jurisprudence, we can expect this category of protected activity to encompass a wide variety of speech in various contexts, including everything from online consumer reviews, to comments on social media sites about any matter of public significance, to speech criticizing powerful figures, such as a government official, a celebrity, or even a manager of a homeowner’s association. And judging from the experiences of California and other states with similar broad definitions of protected activity, #MeToo survivors now have robust protections from retaliatory lawsuits filed by their abusers.

The new statute also protects a wide variety of petitioning activity—that is, speech directed at government bodies or intended to influence governmental processes. As the Massachusetts Supreme Court has explained in defining the scope of the Massachusetts anti-SLAPP law’s broad petition-based definition, petitioning conduct encompasses speech or conduct intended “to influence, inform, or at the very least, reach governmental bodies -- either directly or indirectly.” Marabello v. Boston Bark Corp., 463 Mass. 394, 399 (2012). Petitioning activity as defined in New York’s new law surely includes the same sorts of permit-related activity previously protected, but also much more. To name some examples, petitioning activity encompasses “writing to government officials, attending public hearings, testifying before government bodies, circulating petitions for signatures, lobbying for legislation and engaging in peaceful demonstrations.” Steinmetz v. Coyle & Caron, Inc., 2016 U.S. Dist. LEXIS 99631, at *12 (D. Mass. July 29, 2016).

(2)   Mandatory award of attorney’s fees. Under the new law, the award of attorney’s fees and costs is mandatory rather than permissive, as the law provides that attorney’s fees and costs “shall,” rather than “may,” be awarded to the prevailing defendant. N.Y. Civ. Rights Law § 70-a(1)(a). This change ensures that a defendant who succeeds on an anti-SLAPP motion will be able to recover the attorneys’ fees incurred to defeat the SLAPP. But this amendment also will usher in a more profound, systemic change: it will enable lawyers to take anti-SLAPP cases on a contingency basis, thus potentially begetting a whole new legal market and dramatically increasing access to justice for SLAPP victims.

(3)   Stay of discovery, hearings, and motions. Previously, anti-SLAPP motions were calendared on a preferential basis, so the court would address a defendant’s request for dismissal relatively promptly. Now, additionally, “[a]ll discovery, pending hearings, and motions” shall be stayed pending the resolution of an anti-SLAPP motion. N.Y. C.P.L.R. 3211(g). The ability to put the costly process of discovery on hold is particularly significant: as Thurgood Marshall once remarked, defamation plaintiffs often use discovery devices as “tactics of attrition” to harass their adversaries. Herbert v. Lando, 441 U.S. 153, 204 (1979). This new provision requiring a stay of discovery turns the tables on the SLAPP filer: now the defendant can potentially avoid many of the burdens of litigation, while she occupies the plaintiff with an anti-SLAPP motion.

Areas for Improvement

Arguably, the new law’s definition of protected activity is too broad. This could easily be remedied by two additional amendments, adding certain exemptions from the applicability of the statute. Specifically, New York’s anti-SLAPP law needs a “commercial speech” exemption and a “public interest” exemption.

Prior to the enactment of a commercial speech exemption in California’s anti-SLAPP law, anti-SLAPP motions were often filed by corporate defendants in consumer class actions. In the false advertising context, for instance, it is typically easy to argue that speech in advertisements is of public concern, because such speech concerns a mass-produced good. California’s commercial speech exemption precludes the application of the anti-SLAPP law in “any cause of action” that is “brought against a person primarily engaged in selling or leasing goods or services,” “arises from” speech or conduct related to the goods and services, and is directed at consumers. Cal. Civ. Proc. Code § 425.17(c). Several states, such as Texas, Oklahoma, and Washington, D.C., have followed California’s lead in adopting a commercial speech exemption.

New York should join this movement. As Penelope Canan, one of the scholars responsible for coining the term “SLAPP,” testified before the California Legislature in advocating for the codification of the commercial speech exemption, the invocation of an anti-SLAPP law by corporate defendants against consumer advocates is perverse. Consumer class actions, like anti-SLAPP laws, advance the democratic goal of holding powerful interests accountable. Anti-SLAPP laws should protect consumer advocates against corporations—not the other way around. Moreover, denying protections to defendants in consumer class actions coheres with the more limited nature of constitutional protections for commercial speech in comparison to political speech.

At the same time that California enacted the commercial speech exemption, it also added a “public interest” exemption. The provision exempts “any action brought solely in the public interest or on behalf of the general public” if certain further conditions are met, including that the plaintiff not seek relief “greater than or different from the relief sought for the general public or a class of which the plaintiff is a member.” Cal. Civ. Proc. Code § 425.17(c). California courts have interpreted this exception narrowly, so that it applies mostly to non-profit litigation in pursuit of equitable relief or policy change. It also prevents corporate defendants from invoking the anti-SLAPP law in whistleblower litigation. At least one other state, Colorado, has adopted this exemption.

This exemption is justifiable because class action cases or test cases seeking equitable relief or policy reform are unlikely vehicles for legal harassment. Such suits are typically brought by non-profit organizations that lack a financial incentive to engage in frivolous litigation, against large institutions that are not intimidated by the threat of legal costs. Moreover, impact litigation often involves novel legal claims and theories whose likelihood of success is uncertain for the right reasons—not because the suit is frivolous but because its purpose is to change the law.

Conclusion

The November 2020 amendments to New York’s anti-SLAPP law amount to a radical and largely beneficial reform. Litigators can anticipate that the anti-SLAPP law will come to play a much more significant role in state court litigation. Public interest lawyers should start strategizing about how to wield this new law to protect activists, survivors of sexual harassment and assault, and others, but should also expect that this law will occasionally be invoked in perverse ways by corporate defendants. These reforms are a cause for celebration, but further reform is necessary.