Interstate SLAPPs
When a plaintiff in New York files a SLAPP against a defendant in another state, or an out-of-state plaintiff files a SLAPP against a New Yorker, complex legal issues can arise. First, if the plaintiff sues an out-of-state defendant in New York court, the court might determine it lacks jurisdiction to hear the case at all. Second, in any interstate action, a court must determine whether the anti-SLAPP law of the plaintiff’s state or the defendant’s state applies. Counterintuitively, in interstate SLAPPs, New York law provides greater protections to non-New Yorkers than to New Yorkers.
Jurisdiction Over Out-of-State SLAPP Defendants
If a New York plaintiff files a SLAPP against an out-of-state defendant in a New York court, and the cause of action is defamation, the defendant can often dismiss the case for lack of personal jurisdiction.
Like all states, New York has a “long-arm statute,” which provides the conditions under which a New York state or federal court can exercise jurisdiction over an out-of-state defendant. For example, if an out-of-state defendant commits a tort against an in-state plaintiff, many long-arm statutes permit jurisdiction based on that in-state harm.
Uniquely, New York’s long-arm statute specifically exempts defamation cases from this rule, so that an in-state plaintiff cannot sue an out-of-state defendant for defamation in a New York court simply because the plaintiff experienced harm to their reputation in New York. New York’s long-arm statute, codified at New York Practice Law and Rules section 302, provides that “a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . commits a tortious act within the state, except as to a cause of action for defamation[.]” CPLR § 302(a)(2) (emphasis added). This provision also applies to causes of action similar to defamation, such as intentional infliction of emotional distress. See Chinese Ams. Civil Rights Coal., Inc. v. Trump, No. 21-cv-4548, 2022 U.S. Dist. LEXIS 82562, at *9 (S.D.N.Y. May 4, 2022). In a recent case, the news outlet The Intercept successfully invoked this provision to dismiss a SLAPP against one of its reporters over the outlet’s coverage of the military contractor Blackwater. See Prince v. Intercept, 634 F. Supp. 3d 114 (S.D.N.Y. 2022).
In order to get around this provision, a New York defamation plaintiff must establish personal jurisdiction over the defendant based on some contact with New York other than the defamation itself. For this purpose, a plaintiff can invoke CPLR § 302(a)(1), which permits jurisdiction over a defendant who “transacts any business within the state or contracts anywhere to supply goods or services in the state.” But this route for establishing jurisdiction can be challenging, because courts tend to define this provision "more narrowly in defamation cases than they do in the context of other sorts of litigation." Prince, 634 F. Supp. 3d at 129.
The Application of New York’s Anti-SLAPP Law to SLAPPS Filed by Out-of-State Plaintiffs
When a SLAPP-filer is located outside of New York, they will typically be able to evade the application of New York’s anti-SLAPP law. But there is an exception to this rule that sometimes applies to New York-based media and publishing industry defendants.
Typically, in a cross-jurisdictional SLAPP, the anti-SLAPP law (or lack of one) in the plaintiff’s state will govern. In cross-jurisdictional defamation actions, New York courts generally follow Sections 145 and 150 of the Restatement (Second) Conflict of Laws in choosing which state’s anti-SLAPP law to apply. Sections 145 (concerning tort actions generally) and 150 (concerning multistate defamation actions) state that this analysis hinges on which state has the “most significant relationship” to the parties and the case. These provisions also state that the plaintiff’s domicile is the most important consideration in determining the “most significant relationship” and that the law of the state where the plaintiff is domiciled will usually apply. New York courts embrace this principle in even stronger terms, holding that there is a “presumption” that the law of the plaintiff’s state applies, including any anti-SLAPP statute. See, e.g., Adelson v. Harris, 973 F. Supp. 2d 467, 477-78 (S.D.N.Y. 2013).
But there is an old line of cases providing an exception to this rule where the New York defendant is a media or publishing company. See, e.g., Weinstein v. Friedman, 94 Civ. 6803, 1996 U.S. Dist. LEXIS 3672 (S.D.N.Y. Mar. 26, 1996); Davis v. Costa-Gavras, 580 F. Supp. 1082 (S.D.N.Y. 1984); Grass v. News Grp. Publ'ns, 570 F. Supp. 178 (S.D.N.Y. 1983). Those cases hold that because New York is a hub of media and publishing, it has an interest in protecting those industries that overrides the plaintiff’s state’s interest in protecting its citizens against defamation. Based on this principle, a court in Delaware recently applied New York’s anti-SLAPP law in a defamation action by a Mississippi plaintiff against the Huffington Post over its coverage of Justice Brett Kavanaugh’s alleged sexual misconduct. See Evans v. Thehuffingtonpost.com, Inc., No. 22-1180, 2023 U.S. Dist. LEXIS 143182 (D. Del. Aug. 16, 2023). But this older line of New York cases is not binding, and at least one New York federal court has declined to follow it. See Adelson v. Harris, 973 F. Supp. 2d 467 (S.D.N.Y. 2013).