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.” Id. § 76-a(1)(d). To guide this analysis, courts have looked to New York case law addressing a nearly identical issue in the defamation context—whether speech receives heightened protections because it involves a matter of “public concern,” which is subject to an “extremely broad interpretation,” or is instead of “purely private concern.” Albert v. Loksen, 239 F.3d 256, 270 (2d Cir. 2001); see Shahidullah v. Shankar, No. 20-CV-3602 (DLB), 2022 WL 286935, at *5 (D. Md. Jan. 31, 2022); Lindberg v. Dow Jones & Co., Inc., No. 20-CV-8231 (LAK), 2021 WL 3605621, at *7 (S.D.N.Y. Aug. 11, 2021); Coleman v. Grand, 523 F. Supp. 3d 244, 257–58 (E.D.N.Y. 2021); Carey v. Carey, 160 N.Y.S.3d 854 (Sup. Ct. N.Y. Cnty. 2022). Accordingly, New York’s revised anti-SLAPP law should apply to news reporting generally, and has been successfully invoked by media defendants. See, e.g., Lindberg, 2021 WL 3605621, at *7–10; Epoch Group Inc. v. Politico, LLC, No. 652753/2021, 2021 WL 5850036, at *4 (Sup. Ct. N.Y. Cnty. Dec. 9, 2021); Sackler v. Am. Broad. Companies, Inc., 144 N.Y.S.3d 529, 534 (Sup. Ct. N.Y. Cnty. 2021).
The updated law makes it easier for a defendant to obtain dismissal of a SLAPP suit. A defendant may 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 fails to carry this burden, the court must dismiss the case. To survive a traditional motion to dismiss, on the other hand, a plaintiff merely needs to establish a claim that “cognizable at law.” Id. at 3211(a)(7); Salvatore v. Kumar, 845 N.Y.S.2d 384, 388 (2d Dep’t 2007).
Under the revised law, courts assessing anti-SLAPP motions to dismiss 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 in support of their anti-SLAPP motion, before engaging in lengthy and expensive discovery.
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 to dismiss 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 plaintiffs show specific reasons why they cannot otherwise present facts “essential” to their opposition to the anti-SLAPP motion. Id.
Defendants may also bring special motions for summary judgment under the anti-SLAPP law. N.Y. C.P.L.R. 3212(h) (McKinney). As with motions to dismiss, the court must grant such motions unless the plaintiff establishes that the claim “has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.” Id.
Under the expanded anti-SLAPP law, plaintiffs may not recover damages in 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 lawsuits involving matters of public interest.
Under the revised law, a defendant who prevails on an anti-SLAPP motion is entitled to receive their attorney’s fees and costs. N.Y. Civ. Rights Law § 70-a(a) (McKinney); see, e.g., Harris v. Am. Accounting Ass’n, No. 20-CV-1057 (MAD) (ATB), 2021 WL 5505515, at *13–15 (N.D.N.Y. Nov. 24, 2021); Great Wall Med. P.C. v. Levine, 163 N.Y.S.3d 783 (Sup. Ct. N.Y. Cnty. 2022); Epoch Group Inc., 2021 WL 5850036, at *4; Reus v. ETC Hous. Corp., 148 N.Y.S.3d 663, 670 (Sup. Ct. Clinton Cnty. 2021), aff’d, 2022 WL 617904 (3d Dep’t Mar. 3, 2022); Massa Constr., Inc. v. Meaney, No. 126837/2020, 2021 WL 4321438, at *2 (Sup. Ct. Ontario Cnty. May 10, 2021). Previously, fee awards were discretionary and “almost never actually imposed,” leaving defendants unable to obtain the statute’s “principal remedy.” See S52A Sponsor Mem. Because the statute states, however, that a prevailing defendant “may maintain an action, claim, cross claim or counterclaim” for fees, some courts have declined to award fees when the defendant requested them only in the motion to dismiss, rather than in a separate pleading. See Lindell v. Mail Media Inc., No. 21-CV-667 (PAC), 2021 WL 5910000, at *7 (S.D.N.Y. Dec. 10, 2021); Ctr. for Med. Progress v. Planned Parenthood Fed’n of Am., 551 F. Supp. 3d 320, 333 (S.D.N.Y. 2021), aff’d sub nom. Daleiden v. Planned Parenthood Fed’n of Am., 2022 WL 1013982 (2d Cir. Apr. 5, 2022); Carey, 160 N.Y.S.3d at 854.
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. N.Y. Civ. Rights Law § 70-a(b) (McKinney). 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. Id. § 70-a(c).
The first court to address the issue 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., 510 F. Supp. 3d 21, 27 (S.D.N.Y. 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. Nearly all courts that have weighed in since have agreed that the amendments apply retroactively. See NOVAGOLD Res., Inc. v. J Cap. Rsch. USA LLC, No. 20-CV-2875 (LDH) (PK), 2022 WL 900604, at *9 (E.D.N.Y. Mar. 28, 2022); Kesner v. Buhl, No. 20-CV-3454 (PAE), 2022 WL 718840, at *11 (S.D.N.Y. Mar. 10, 2022); Shahidullah, 2022 WL 286935, at *5; Lindberg, 2021 WL 3605621, at *7 n.77; Ctr. for Med. Progress, 551 F. Supp. 3d at 320 n.3; Sweigert v. Goodman, No. 18-CV-8653 (VEC) (SDA), 2021 WL 1578097, at *2 (S.D.N.Y. Apr. 22, 2021), report and recommendation adopted, 2022 WL 168080 (Jan. 19, 2022); Goldman v. Reddington, No. 18-CV-3662 (RPK) (ARL), 2021 WL 4755293, at *3 (E.D.N.Y. Apr. 21, 2021), report and recommendation adopted, 2021 WL 4099462 (Sept. 9, 2021); Coleman, 523 F. Supp. 3d at 258; Great Wall Med. P.C., 163 N.Y.S.3d at 783; Reus, 148 N.Y.S.3d at 669; Project Veritas v. N.Y. Times Co., No. 63921/2020, 2021 WL 2395290, at *7 (Sup. Ct. Westchester Cnty. Mar. 18, 2021); Griffith v. The Daily Beast, No. 100114/2020, 2021 WL 2940950, at *3 (Sup. Ct. N.Y. Cnty. July 13, 2021); Cisneros v. Cook, No. 157550/2020, 2021 WL 2889924, at *5 (Sup. Ct. N.Y. Cnty. July 7, 2021); Reilly v. Crane Tech Sols., LLC, No. 160944/2017, 2021 WL 2580281, at *2 (Sup. Ct. N.Y. Cnty. June 23, 2021); Massa Constr., Inc., 2021 WL 4321438, at *2; Sackler, 144 N.Y.S.3d at 532. One New York appellate court has, however, held that the amendments do not apply retroactively. Gottwald v. Sebert, No. 2021-03036, 2022 WL 709757, at *1 (1st Dep’t Mar. 10, 2022); see also Robbins v. 315 W. 103 Enterprises LLC, Nos. 2021-02909, 2021-02910, 2022 WL 1177440 (1st Dep’t Apr. 21, 2022) (same, under Gottwald); Zuckerbrot v. Lande, No. 655110/2020, 2022 WL 816807, at *11 (Sup. Ct. N.Y. Cnty. Mar. 17, 2022) (same). A motion for reargument or leave to appeal the decision is pending. Dkt. 20, Gottwald v. Sebert, No. 2021-03036 (1st Dep’t filed Apr. 11, 2022).
Courts have differed over the extent to which the revised anti-SLAPP law applies in federal court. When deciding state-law claims, federal courts apply state substantive law and federal procedural law; the dispute is over which provisions of the anti-SLAPP law are considered substantive. Federal district courts have applied § 76-a, the provision that imposes an actual malice standard when the communications at issue are categorized as public participation. See NOVAGOLD Res., Inc., 2022 WL 900604, at *9; Shahidullah, 2022 WL 286935, at *4; Lindberg, 2021 WL 3605621, at *7; Sweigert, 2021 WL 1578097, at *2; Coleman, 523 F. Supp. 3d at 258; Palin, 510 F. Supp. 3d at 26.
Some federal district courts have declined to apply the attorney’s fees provision, § 70-a. See Brady v. NYP Holdings, Inc., No. 21-CV-3482 (LJL), 2022 WL 992631, at *11 (S.D.N.Y. Mar. 31, 2022); Carroll v. Trump, No. 20-CV-7311 (LAK), 2022 WL 748128, at *6–7 (S.D.N.Y. Mar. 11, 2022); Kesner, 2022 WL 718840, at *17; Nat’l Acad. of Television Arts & Scis., Inc. v. Multimedia Sys. Design, Inc., No. 20-CV-7269 (VEC), 2021 WL 3271829, at *12–13 (S.D.N.Y. July 30, 2021). But see Harris, 2021 WL 5505515, at *13–14 (awarding attorneys’ fees under statute).
Other federal district courts have found that the special motions to dismiss and motions for summary judgment set forth in N.Y. C.P.L.R. 3211(g) and 3212(h) do not apply, at least within the Second Circuit. See Friedman v. Bloomberg, L.P., No. 15-CV-443 (AWT), 2022 WL 1004578, at *1 (D. Conn. Apr. 4, 2022); Carroll, 2022 WL 748128, at *7; Nat’l Acad. of Television Arts & Scis., Inc., 2021 WL 3271829, at *12–13; Sweigert, 2021 WL 1578097, at *2. But see Cheng v. Neumann, No. 21-CV-181 (LEW), 2022 WL 326785, at *4 (D. Me. Feb. 3, 2022) (“[F]or purposes of litigation filed in the district courts within the First Circuit, New York’s [anti-SLAPP] law is substantive and therefore applicable in federal court.”). Federal appeals courts, including the Second Circuit, have yet to weigh in.