The Anti-SLAPP Law Protects Speech About Public Issues, Not Private Issues.
New York’s anti-SLAPP law protects only speech and petitioning activity that concerns “issues of public interest.” New York Civil Rights Law § 76-a.
In this respect, New York’s anti-SLAPP statute tracks the First Amendment, but only roughly. As the United States Supreme Court has observed, “not all speech is of equal First Amendment importance . . . and where matters of purely private significance are at issue, First Amendment protections are often less rigorous.” Snyder v. Phelps, 562 U.S. 443, 452 (2011). At the same time, outside of narrow First Amendment contexts, like speech protections for public employees, speech about private issues is generally protected, even if to a lesser degree. See Connick v. Myers, 461 U.S. 138, 147 (1983) (“We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction.”); Eichenlaub v. Twp. of Ind., 385 F.3d 274, 284 (3d Cir. 2004) (noting that “outside the employment context the First Amendment forbids retaliation for speech even about private matters”).
By contrast, New York’s anti-SLAPP law categorically exempts speech about private issues from protection. For this reason, determining whether speech or petitioning activity is of private or public concern is essential in assessing the potential for anti-SLAPP dismissal. The case law offers a few guiding principles:
1. Commercial disputes are often of private concern. For example, in Ascend Wellness Holdings, Inc. v. MedMen NY, Inc., Index No. 650220/2022 (New York County, Aug. 21, 2023), the court declined to apply the anti-SLAPP law in a dispute involving an investment agreement between two cannabis retailers, even though the suit arose partly from petitioning activity related to cannabis licensure. And in Ashkenazy v. Gindi, Index. No 656277/2020 (New York Court, July 10, 2022), the court denied an anti-SLAPP motion in a contract dispute between real estate investors, when the anti-SLAPP motion was predicated on the defendant’s statements to other real estate investors about the plaintiff’s commercial conduct. But in Moby v. Morgan Stanley, Index. No. 159425/2021 (NY County, Sep. 8, 2022), the court granted an anti-SLAPP motion predicated on litigation activity in the context of a dispute among creditors regarding a corporate restructuring.
2. Online consumer reviews tend to implicate the public interest. Courts have consistently found that online consumer reviews implicate the public interest. See, e.g., Amuze v. Better Business Bureau, Index No. 651529/2022 (NY County, Mar. 3, 2023) (clothing retailer sued consumer review website for hosting negative consumer reviews); Aristocrat Plastic Surgery, P.C. v. Silva, 206 A.D.3d 26, 27 (1st Dep’t May 19, 2022) (medical office sued former patient for negative consumer reviews); Great Wall Medicine P.C. v. Levine, Index No. 157517/2017 (NY County, Mar. 8, 2022) (same).
3. Private disputes that implicate #MeToo issues can be of public interest. For example, in Coleman v. Grand, No. 18-cv-5663 (E.D.N.Y. Feb. 26, 2021), the court found that a defamation action involving two professional saxophonists concerned the public interest when it arose from the defendant’s statements in an e-mail to 80 industry colleagues about the plaintiff’s alleged sexual misconduct (although the court denied the anti-SLAPP motion for other reasons). And in Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y. Apr. 21, 2021), the court granted the defendant leave to amend to add an anti-SLAPP counterclaim when the plaintiff had asserted a defamation claim based on the defendant’s social media posts accusing the plaintiff of sexual assault at a college fraternity party.