New York's New and Improved Anti-SLAPP Law Effective Immediately

On November 10, 2020, Governor Andrew Cuomo signed into law an update to New York's anti-SLAPP law that dramatically expands protections afforded to defendants in lawsuits brought based on the exercise of free speech rights, and which significantly increases the risks to potential plaintiffs bringing defamation and other speech-based claims in New York.

What Is an Anti-SLAPP Law?

The term "SLAPP" is an acronym for "Strategic Lawsuit Against Public Participation," and the goal of an anti-SLAPP law is to deter these types of lawsuits—lawsuits that are filed not to vindicate a fair and reasonable legal claim, but to punish or harass a defendant for participating in public life. Defendants facing so-called "SLAPP suits" can include not only journalists and traditional media/entertainment organizations, but also individuals and companies in other industries that speak on issues of interest to the public—on social media, in marketing, or any other form of participation in the marketplace of ideas. The "strategy" of a SLAPP suit is to saddle the defendant with such burdensome litigation costs that it chills, ceases, or retracts its speech. Anti-SLAPP laws seek to deter SLAPP suits by expanding the legal protections available to defendants targeted by such suits, and by imposing costs on the plaintiffs that bring them.

What Has New York Done?

Although New York already had an anti-SLAPP law on the books, adopted nearly 30 years ago, the old version of the law applied only narrowly to lawsuits brought by plaintiffs who had sought public permits, zoning changes, or other similar entitlements from a government body, against defendants who had reported on, ruled on, or challenged the plaintiff's petition to the government body. It generally did not apply to speech by journalists in traditional media outlets or speech by anyone on social media concerning the issues of the day.

New York's new anti-SLAPP law will now extend, far more broadly, to lawsuits based upon "any communication in a public place open to the public or a public forum in connection with an issue of public interest" or based upon "any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest . . . ." Because the statute also states that "public interest" should be "construed broadly, and shall mean any subject other than a purely private matter," the new anti-SLAPP law should be expected to sweep up political and social discussions, as well as entertainment productions.

What Protections Does New York's New Anti-SLAPP Law Contain?

In total, 30 states and the District of Columbia possess some form of anti-SLAPP legislation, but not all anti-SLAPP laws are created equal. With the amendments to New York's Civil Rights Law §§ 70-a, 76-a signed into law by Governor Cuomo, New York joins about 18 other states that have adopted robust anti-SLAPP protections that apply to speech about public issues. A speech-protective anti-SLAPP regime will allow a targeted defendant to escape a bad-faith SLAPP suit quickly and without incurring high legal costs or invasive discovery. As amended, New York's anti-SLAPP law does exactly this.

Specifically, the new law arms a defendant targeted by a SLAPP suit with the following tools:

• Evidence Outside of the Pleadings: The new law empowers the courts to decide anti-SLAPP motions not only based on allegations in the pleadings, but also based on facts and documents supported by affidavits. This evidence outside of the pleadings can relate either to the plaintiff's claims or to the defendant's defenses. This procedural mechanism is powerful because it allows defendants to assert, earlier in a litigation than normally is possible, legal arguments and defenses that are sometimes not readily available based solely on the allegations of the complaint, such as the substantial truth of the challenged statements and defendants' lack of fault in making the publication. The result is that the court can dismiss at the outset frivolous claims that otherwise could have required costly, time-consuming, and intrusive testimonial and documentary discovery.
• Enhanced Burden of Proof: Once the defendant has demonstrated that the lawsuit they are facing is an action based on their public communications or other free speech conduct, the plaintiff can only avoid dismissal by demonstrating that their claim has a "substantial basis in law" or is supported by a "substantial argument" for modifying the law. Although the new law does not offer a definition of "substantial basis" or an express explanation of how it compares to the ordinary standards governing a motion to dismiss, there are indications that the burden is more demanding. For example, a claim can survive a traditional motion to dismiss if the allegations in the complaint manifest any cause of action "cognizable at law." The anti-SLAPP law by contrast requires a "substantial basis" in the law, which is more stringent than "cognizable." Further, the new statute shifts the burden—whereas on an ordinary motion to dismiss or for summary judgement, the moving party must demonstrate that the claim is unsustainable, under the new statute the plaintiff carries the obligation to show that its SLAPP suit is supported by a "substantial basis in the law."
• Automatic Stay of Discovery: While the anti-SLAPP motion is pending, all discovery and other hearings or motions (and thus, burdens on the defendant) are now required to be stayed, by default.
• Mandatory Fee-Shifting: In addition to the procedural hurdles outlined above, the new anti-SLAPP law provides that a defendant that wins a motion to dismiss a SLAPP suit is always entitled to have its costs and attorney's fees paid by the plaintiff. This replaces the prior law's discretionary fee-shifting provision with a mandatory one. Those considering lawsuits based on public speech will thus have to think carefully about the financial hit they will take if they are determined to have filed an inappropriate SLAPP suit.

What if the Case Is in Federal Court?

Although the anti-SLAPP law constitutes state-level legislation, it is not yet clear how the new anti-SLAPP law will fare in federal court. The First and Ninth Circuits have held that state-level anti-SLAPP laws are applicable in federal actions, while the DC Circuit, the Fifth Circuit, and the Eleventh Circuit have rejected the use of state anti-SLAPP laws. The Second Circuit, where New York's law is most likely to be tested, also recently rejected the application of portions of a state anti-SLAPP regime—specifically, California's—in La Liberte v. Reid, 966 F.3d 79, 88 (2d Cir. 2020). The Second Circuit's holdings in La Liberte nevertheless leave open the possibility that at least some part of the New York's new law may still be available in federal court. For example, the Second Circuit did not resolve whether anti-SLAPP fee shifting provisions could be applied in federal court in cases where the scope of the rule sweeps broadly enough to include federal motion practice. Id. at 89 n.6. And New York's new law appears to provide for fee awards on precisely the general basis contemplated by the La Liberte court. Accordingly, on these and other dimensions, it remains to be seen how New York's law will fare.

When Does New York's New Anti-SLAPP Law Take Effect?

Per the terms of the legislation, New York's new Anti-SLAPP law is effective immediately. It is likely that a court will soon also be called upon to determine whether the law applies to those suits filed prior to November 10. The text of the law provides one avenue to argue that it should apply to cases that are already filed—the procedural remedies are available to use in any SLAPP suit that was "commenced or continued" without a substantial basis in the law. Rules of statutory construction provide an additional argument in favor of retroactivity. In determining whether a statute applies retroactively, New York courts look to whether the new legislation has a "remedial purpose"—that is, whether the legal change was urgently pursued, sought to correct prior unintended judicial interpretations, or sought to clarify what the law was always meant to be—in which case, the law will apply retroactively to ongoing cases. In re Gleason (Michael Vee, Ltd.), 749 N.E.2d 724, 726-27 (N.Y. 2001). In adopting the new law, the Legislature gave a strong indication that it was motivated by just that intent, stating that the changes were intended to correct a "narrow[] interpret[ation]" by the courts of the previous anti-SLAPP procedure, to remedy court's "fail[ing] to use their discretionary power to award costs and attorney's fees" in SLAPP suits, and to "better advance the purposes that the Legislature originally identified in enacting New York's anti-SLAPP law."

What's the Takeaway?

Companies and individuals facing speech-based claims should consider this law a powerful tool that will allow them greater freedom and legal certainty to engage in public speech. Conversely, potential plaintiffs bringing claims based on a defendant's speech activities should consider carefully whether the claim they wish to bring could survive scrutiny when considered in light of evidence available to the potential defendant.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.