In November 2020, New York significantly expanded its anti-SLAPP law, which the state had first adopted in 1992. The law protects defendants in legal actions “involving public petition and participation.” N.Y. Civ. Rights § 70-a (McKinney). The old law narrowly defined this term to include only cases brought by plaintiffs seeking public permits, zoning changes, or other entitlements from a government body. The 2020 amendments broadened this term to cover cases involving “any communication in a place open to the public or a public forum in connection with an issue of public interest” or “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest . . . .” N.Y. Civ. Rights Law § 76-a(1)(a)(1)-(2) (McKinney).
The new law requires courts to “broadly” construe the term “public interest” to “mean any subject other than a purely private matter.” § 76-a(1)(d). Accordingly, New York’s revised anti-SLAPP law should apply to news reporting generally.
The updated law makes it easier for a defendant to obtain dismissal of a SLAPP suit. A defendant need only file a motion to dismiss, demonstrating that the legal action involves “public petition and participation,” and then the burden shifts to the plaintiff to show that the lawsuit “has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law.” N.Y. C.P.L.R. 3211(g)(1) (McKinney). If the plaintiff does not carry this burden, the court must dismiss the case. Traditionally, the defendant carries the burden of proving that the plaintiff has failed to state a claim, and the claim need only be “cognizable at law.” Id. at 3211(a)(7).
Under the revised law, courts assessing anti-SLAPP motions will consider the pleadings (meaning the plaintiff’s complaint and defendant’s answer) as well as “supporting and opposing affidavits stating the facts upon which the action or defense is based.” N.Y. C.P.L.R. 3211(g)(2) (McKinney). This allows the defendant to submit evidence early in the case – before engaging in lengthy and expensive discovery – supporting an anti-SLAPP motion.
The law also requires courts to prioritize anti-SLAPP motions by giving “preference in the hearing” of them. Id. at 3211(g)(1). This can be helpful if the court has a backlog of cases.
The 2020 amendment requires the court to stay “all discovery, pending hearings, and motions” from the time an anti-SLAPP motion is filed until the court rules on that motion. Id. at 3211(g)(3). The law does, however, allow courts to permit certain discovery, “limited to the issues raised in the motion to dismiss,” if the plaintiffs show specific reasons why they cannot otherwise present facts “essential” to their opposition to the anti-SLAPP motion. Id.
Under the expanded anti-SLAPP law, plaintiffs may not recover damages in libel cases involving “public petition and participation” unless they show “by clear and convincing evidence” that the defendant made the statement knowing it was false or “with reckless disregard” as to whether it was false. N.Y. Civ. Rights Law § 76-a(2) (McKinney). The U.S. Supreme Court has long held that the First Amendment requires libel plaintiffs who are public officials or public figures to satisfy this high standard of fault, known as “actual malice.” New York’s anti-SLAPP law codifies that standard and now requires private figures to demonstrate the same level of fault before recovering damages in libel lawsuits involving matters of public interest.
Under the revised law, a defendant who prevails on an anti-SLAPP motion is entitled to attorneys’ fees and costs. N.Y. Civ. Rights Law § 70-a(a) (McKinney). A defendant may also recover “other compensatory damages” by showing that the plaintiff brought the case to harass, intimidate, punish, or maliciously inhibit free speech, petition, or association rights. § 70-a(b). A defendant may also recover punitive damages by showing that the plaintiff brought the case “for the sole purpose” of harassing, intimidating, punishing or maliciously inhibiting free speech, petition, or association rights. § 70-a(c).
At least one court has held that New York’s revised anti-SLAPP law applies retroactively to cases already pending when the legislation was adopted. Palin v. N.Y. Times Co., No. 17-CV-4853 (JSR), 2020 WL 7711593, at *3 (S.D.N.Y. Dec. 29, 2020). The court pointed to the remedial purpose of the 2020 amendment – to “correct the narrow scope” of the prior law and “provide the utmost protection” for free speech, petition, and association rights. Id.