After years of stalled progress, New York has amended its Civil Rights Law and Civil Practice Law and Rules (CPLR) to furnish stronger procedural remedies to persons sued for exercising their rights to free speech. This amendment brings long-awaited upgrades to New York's protection of journalists, as well as others who face meritless lawsuits based on their speech.

A SLAPP, or "strategic lawsuit against public participation," is a lawsuit that targets a person who speaks on matters of public interest. Such lawsuits—which often involve libel claims but may include a wide variety of claims—are often brought not to obtain a judicial remedy, but to place financial pressure on the defendant, seek retraction of statements the plaintiff disliked, or simply to harass. SLAPPs retaliate against prior speech, stifle future speech, and corrode public discourse and the flow of information. Journalists and authors are frequent targets of such suits.

Anti-SLAPP laws provide special procedures and sanctions deployable against the proponents of SLAPPs shown to lack merit. The purpose of such laws is to prevent SLAPPs in the first place, and thereby encourage criticism and free speech. Over half of the United States has meaningful anti-SLAPP laws. Advocates such as the Public Participation Project gave low marks to New York's previous law, which they considered too narrow and weak. In particular, New York's law in practice only narrowly applied to speech in connection with public applications or permits, greatly limiting its utility.

It has been a long road to this moment for New York. Versions of the bill just signed existed as early as 2012. In July 2020, Assembly Bill A5991A passed the New York Senate by a 57-3 vote and received Governor Cuomo's signature on November 10, 2020. Press groups such as the Reporters Committee for Freedom of the Press have hailed the new law.

New York law, as amended, now provides:

  • A broad definition of a SLAPP, specifically, that an "action involving public petition and participation" (hereafter, a SLAPP) is a claim based upon "(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition." NY CLS Civ R § 76-a(1)(a)
  • That "Public interest" is to be "construed broadly" and means "any subject other than a purely private matter." NY CLS Civ R § 76-a(1)(d).
  • That motions to dismiss SLAPPs "shall be granted" unless the plaintiff demonstrates that their action "has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law." NY CLS CPLR 3211(g)(1).
  • That the filing of a motion to dismiss automatically stays the SLAPP. CPLR 3211(g)(3). The only discovery the court may permit, on motion, is discovery limited to issues raised in the motion to dismiss the SLAPP. Id.
  • That costs and attorney's fees shall be recovered where the defendant prevails on a motion to dismiss a SLAPP. NY CLS Civ R § 70-a(1)(a).

The new law has taken immediate effect. Whether the new law will apply in actions filed before its enactment, or in actions in federal courts applying New York law, is yet to be seen and will likely be determined by the courts.

A motion to dismiss under CPLR 3211(g)(1) will be an important tool in preventing and discouraging lawsuits concerning a defendant's public speech and expression going forward. Such a motion will result in a stay of proceedings while the motion is adjudicated, and, if successful, plaintiffs will be obligated to pay the defendant's attorney's fees and costs. This revision to the anti-SLAPP law should provide welcome relief for publishers and authors who face retaliatory lawsuits from those who seek to squelch public debate.

For Further Information

If you have any questions about this Alert, please contact Jennifer Philbrick McArdle, Mark Lerner, Glenn C. Edwards, Brian N. Biglin or any other attorneys in our Media and Communications Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.