For years, a growing number of United States jurisdictions – such as California, Colorado, Texas, Georgia, Nevada, Oregon, Louisiana, Oklahoma, Kansas, and Tennessee – have been enacting (or refining) strong anti-SLAPP laws, which provide defendants in lawsuits arising from speech and petitioning activities with important tools for achieving early dismissal and for recovering their attorneys’ fees. But even though New York is “the media capital of the country if not the world,” Holmes v. Winter, 22 N.Y.3d 300, 316 (2013), and the media are frequent users of anti-SLAPP statutes, New York had a weak anti-SLAPP law that was applicable only in limited circumstances.
No longer. On November 10, 2020, Governor Cuomo signed into law legislation that strengthens New York’s existing anti-SLAPP law (Civil Rights Law § 76-a). The legislation significantly expands the categories of claims that are subject to anti-SLAPP protections. It also expands the anti-SLAPP protections given to defendants sued for such claims, including making recovery of attorneys’ fees mandatory when an anti-SLAPP motion to dismiss is successful and providing for a stay of discovery and other proceedings while the motion is pending.
The Senate Sponsor Memo for the bill confirms that the purpose of the new statute is to provide “the utmost protection for the free exercise of speech, petition, and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern.”
“SLAPP” refers to “strategic lawsuits against public participation.” Previously, under New York Civil Rights Law § 76-a, anti-SLAPP motions to dismiss were limited to claims “brought by a public applicant or permittee” and “materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission,” such as in the real estate context.
Under the amended law, the anti-SLAPP provisions apply to any claim that is 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.”
While media defendants that are sued for content-related claims certainly will be among the most frequent users of the new anti-SLAPP statute, those outside the media industry will find New...
