Anti-SLAPP statutes have been a powerful weapon for media companies defending claims arising from a wide range of content – from the reality television program “Who Wants to Marry a Millionaire,” to an article in the National Enquirer reporting that Richard Simmons was transitioning gender.[1] On November 10th, New York joined a growing chorus of states that provide such protections when Governor Cuomo signed legislation expanding New York’s existing law, arming creators and publishers of content with a vigorous defense for their activities.
Under the new law, the anti-SLAPP statute applies to any claim that is based upon: (1) “any communication” in a public place that relates to a matter of public interest, or (2) “any other lawful conduct” that furthers the right of free speech on a matter of public interest. Previously, New York’s statute only applied to claims brought against people who attempted to comment on, challenge, or oppose applications or permits from government bodies, reflecting its roots as a tool designed to protect individuals from developers in zoning disputes,
The new statute essentially shifts the burden of proof to the plaintiff once a defendant establishes that the anti-SLAPP statute applies, and requires the plaintiff to demonstrate – through affidavits and other evidence – that its claim has a “substantial basis in fact or law” and cannot be supported by an argument for modification or reversal of the law. The statute stays discovery, permits a motion to be made at the beginning of a case, and mandates an award of attorneys’ fees for a successful defendant.
Although the statute will undoubtedly deter some litigants from bringing meritless claims against the media, it remains to be seen whether New York’s federal courts will apply the statute. The Second Circuit Court of Appeals has held that California’s anti-SLAPP statute does not apply in the federal courts in New York, and several other appellate courts have held similarly. This opens the possibility that the protections afforded under the statute will vary depending upon where a plaintiff brings suit, which will undoubtedly lead to inconsistent outcomes and forum shopping.
[1] SLAPP stands for “Strategic Lawsuits against Public Participation.”