New York’s Anti-SLAPP Law Is Only a Slap on the Wrist. Will New Legislation Make It Sting?

By Julio Sharp-Wasserman

 *Reprinted with permission from: New York State Bar Association Journal, December 2019, Vol. 91, No. 9, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

 Introduction

Anti-SLAPP laws provide procedural mechanisms that deter meritless suits filed to chill speech or petitioning activity—“Strategic Lawsuits Against Public Participation,” or “SLAPPs.”[1] The classic narrative of a SLAPP is that a public figure or corporation files a frivolous lawsuit against a less powerful critic for expressing her opinion through journalism, political organizing, or protest.[2]  The object of such a suit is to intimidate and silence someone by disrupting their life and forcing them to expend money and time. State anti-SLAPP statutes typically permit a defendant to file a motion for expedited dismissal, upon which a pre-trial hearing must be held within a statutorily defined time period. If, at that hearing, a judge determines both that the suit is meritless and that it targets specifically First Amendment-related conduct, the suit is dismissed, with costs imposed on the plaintiff.

Unfortunately, despite being a hub of media, entertainment, and protest movements, New York has some of the weakest anti-SLAPP protections in the nation. State anti-SLAPP statutes vary in how broadly they define protected First Amendment-related activity, and in whether they make the imposition of costs mandatory. New York’s current anti-SLAPP law[3] is relatively weak in two ways. First, it defines protected activity so narrowly that most First-Amendment related conduct remains vulnerable to retaliatory litigation. And even in the narrow category of situations in which anti-SLAPP protection is available, the protection is illusory, because the imposition of costs on a SLAPP-filer is discretionary rather than mandatory.

Senate Bill S52 amends New York’s anti-SLAPP law to fix both of these defects, and in this, it is a welcome legislative change. The proposed revisions would align New York with a growing number of jurisdictions, such as Texas, California, Oregon, and Washington, D.C., that have adopted broad anti-SLAPP protections backed by mandatory sanctions.

But Senate Bill S52 goes too far, albeit in an easily correctable way. Lawmakers should add certain exemptions to the bill’s broad definition of protected activity. California and other states have codified exceptions to their respective statutes’ broad definitions of protected activity that preclude the use of anti-SLAPP in consumer class actions and non-profit public interest litigation. These exemptions prevent the perverse use of anti-SLAPP protections by well-resourced defendants against public interest legal advocacy.

 New York’s Current Anti-SLAPP Law

 New York’s anti-SLAPP statute provides insubstantial protections in a narrow and arbitrary category of circumstances. New York’s anti-SLAPP statute only offers protection against SLAPPs brought by individuals or entities seeking permits or applications from a government body.[4] To prevail on an anti-SLAPP motion in New York, a SLAPP target must show that the plaintiff is a “public applicant or permittee,” and that the plaintiff’s claim is “materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.”[5] Because SLAPPs occur in a variety of contexts that do not implicate permitting processes, New York’s ant-SLAPP law is of limited use.[6]

Most lawsuits that fit the philosophical definition of a SLAPP nevertheless do not fit into New York’s narrow definition of protected activity. For instance, SLAPP tactics are sometimes employed by businesses to silence online consumer reviewers, as when a Manhattan dentist sued a former patient for posting negative online reviews allegedly in violation of a confidentiality agreement.[7] SLAPP tactics are also employed by individuals accused of sexual assault, as when a New York comic sued a fellow comedian for a Facebook post referencing accusations against him, and sued a Manhattan theater for refusing to book his acts.[8] Neither of these genres of SLAPPs typically implicate permitting processes.

Moreover, even if a defendant can establish that the suit arises from protected activity, the court is not required to award legal fees. The imposition of costs and attorneys’ fees is discretionary in New York,[9] as opposed to being a necessary consequence of granting an anti-SLAPP motion, as in many other states.[10] This makes New York’s anti-SLAPP law less effective as a deterrent to SLAPPs, because financial penalties are a less certain result of filing a SLAPP.

The uncertain availability of legal fees prevents defendants of limited means from hiring counsel on contingency.[11]  As Evan Mascagni, Policy Director at the Public Participation Project, which advocates for the passage of anti-SLAPP legislation, recounted in an interview,

“When I was an anti-SLAPP litigator in California, the first thing a potential client would often tell us was that they could not afford to hire counsel.  The promise of fee-shifting allowed us to take those cases. Even now, when a SLAPP victim contacts PPP for help, it is much easier for me to make a referral if they're in a state with automatic fee-shifting.”[12]

 Especially given that the main ill targeted by anti-SLAPP legislation is the litigation tactic of leveraging wealth to outspend a defendant, the inaccessibility of anti-SLAPP protections to people of modest means is an essential defect of New York’s statute.

A 2003 New York case simultaneously exemplifies the type of action that qualifies as a SLAPP in New York and illustrates the frustration of absorbing the costs of a SLAPP despite a successful defense on the merits. In New Line Realty Corp. v. United Comms. of Univ. Heights, a realty company sued the Northwest Bronx Community and Clergy Coalition in response to their advocacy on behalf of tenants in several buildings in the Bronx.[13] The realty company claimed trespass, libel and tortious interference with prospective economic advantage.[14] The defendants had been reporting housing code violations to the Department of Housing Preservation and Development, which the court held amounted to challenging the defendant’s fitness to hold certain government-issued permits for its buildings and thus was protected.[15]

The court, however, did not award attorney’s fees.[16] Unsurprisingly, given that the case reached resolution after five years of litigation,[17] the SLAPP was effective at inhibiting the NWBCCC’s advocacy. The NWBCCC accumulated over $1 million in legal costs in mounting a defense. As one staffer recounted, “we basically stopped working in most of the buildings we were involved in because we were afraid they would be added on [to the lawsuit].”[18]

 Senate Bill S52’s stronger anti-SLAPP protections

Senate Bill S52 amends New York’s anti-SLAPP to bring it in in line with a growing chorus of jurisdictions that have codified broad protections backed by mandatory sanctions.[19] California, for example, defines protected activity to include “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.”[20] Protected activity also includes a broad category of petitioning activity— “any written or oral statement or writing” that is either “made before a legislative, executive or judicial proceeding” or made “in connection with an issue under consideration or review” by any such body or “any other official proceeding recognized by law.”[21] This capacious definition encompasses a varied list of activities, from statements assailing the character of a government official,[22] to criticisms of the manager of a homeowner’s association,[23] to online consumer reviews,[24] to statements in a hospital’s state-mandated peer review proceedings.[25] And the award of legal fees to a defendant who prevails on an anti-SLAPP motion is mandatory.[26]

The new definition proposed would be broad in an analogous manner to those in statutes like California’s. Under S52, protected activity is now defined as “(1) any communication in a place open to the public or a public forum in connection with an issue of public concern; 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 concern, or in furtherance of the exercise of the constitutional right of petition.”[27] This definition mirrors definitions of speech activity in statutes like California’s and protects an expansive category of First Amendment-related conduct that undoubtedly encompasses all manner of petitioning activity. Moreover, attorney’s fees are now a mandatory rather than a discretionary sanction.[28]

 Recommended changes to S52

While a narrow definition of protected activity lets many SLAPPs slip through the cracks, a broad one, like California’s and like the one in New York’s proposed new law, can deter certain types of legitimate legal advocacy that do not implicate First Amendment concerns. In order to prevent the latter extreme, it is necessary for the New York legislature to include certain exemptions to the definition of protected activity. 

Ten years after the passage of its anti-SLAPP law, California added two important exemptions to the definition of protected activity: the “commercial speech” exemption and the “public interest” exemption. The commercial speech exemption prevents corporate defendants from using anti-SLAPP protections in the context of consumer litigation. The “public interest” exemption precludes the use of anti-SLAPP in the context of public interest litigation of the type a non-profit would file, principally seeking equitable relief and bought to advance a moral goal.

In California, prior to the addition of a commercial speech exemption to California’s anti-SLAPP law,[29] anti-SLAPP motions were often filed by corporate defendants in class action suits targeting deceptive or fraudulent business practices. In the false advertising context, for instance, it is typically easy to argue that speech in advertisements is of public concern because the speech concerns a mass-produced good.[30] The provision precluded the use of anti-SLAPP in “any cause of action” that is “brought against a person primarily engaged in selling or leasing goods or services,”  and “arises from” speech or conduct related that pertains to the goods and services and is directed at consumers.[31] Subsequent to the enactment of the commercial speech exemption, California courts have denied corporate defendants the benefit of anti-SLAPP protection in false advertising cases,[32] and have generally confined the application of this exemption to the false advertising context.[33]

Several states have followed California’s lead in adopting a commercial speech exemption[34]; and New York should join this movement as well. Such an exemption is justifiable, first, because consumer class actions are a form of a petitioning activity that, like an anti-SLAPP law, advances the democratic goal of imposing equal legal accountability on powerful interests.[35]  Moreover, denying protections to defendants in consumer class actions coheres with the limited nature of Constitutional protections for commercial speech in comparison to political speech.[36]

At the same time that California codified the commercial speech exemption, it also added a “public interest” exemption, which prevents defendants from using anti-SLAPP protection in the context of “public interest” litigation, as defined in the statute. The provision exempts “any action brought solely in the public interest or on behalf of the general public” if certain further conditions are met, including that the plaintiff not seek relief “greater than or different from the relief sought for the general public or a class of which the plaintiff is a member.”[37] California courts have interpreted this exception narrowly, so that it essentially applies only to non-profit litigation in pursuit of equitable relief.[38] At least one other state has adopted this exemption.[39]

This exemption is justifiable because class action cases or test cases seeking equitable relief are unlikely vehicles for legal harassment. Such suits are typically brought by non-profit lawyers who lack a financial incentive to engage in frivolous litigation, against large institutions that are not intimidated by the threat of legal costs. Moreover, impact litigation often involves novel legal claims and theories whose likelihood of success is uncertain for the right reasons—not because the suit is frivolous but because its purpose is to change the law. Applying anti-SLAPP protection to such actions would chill legitimate public interest advocacy, which after all seeks the same goal as anti-SLAPP legislation, of holding powerful private interests accountable.

 Conclusion

Through the lens of the values underlying anti-SLAPP legislation, the new anti-SLAPP regime proposed in S52 is superior to the current one but also has unique defects. In order to encompass the diverse and unexpected factual settings and substantive areas of law in which SLAPPs occur, protected activity must be defined abstractly, as in S52. The downside of abstract language is that it begets unforeseen applications. Nonetheless, two simple additions the bill, the well-tested “commercial speech” and “public interest” exemptions to anti-SLAPP protection, would preclude unintended applications that undermine the policies underlying the law.

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[1] The term “SLAPP” was coined by Professors George Pring and Penelope Canan. See George W. Pring & Penelope Canan, Getting Sued For Speaking Out, 8-9 (1996).

[2] See, e.g., Trump v. Chi. Tribune Co., 616 F. Supp. 1434 (S.D.N.Y. 1985) (libel suit against the Chicago Tribune by a celebrity real estate magnate in response to an article characterizing one of his buildings as unattractive).

[3] See N.Y. Civ. Rights Law §§ 70-a, 76-a; N.Y. C.P.L.R. §§ 3211(g), 3212(h).

[4] N.Y. Civ. Rights Law § 76-a(1).

[5] Id. at § (a)(1)(a); see also Edwards v. Martin, 158 A.D.3d 1044, 1046, 72 N.Y.S. 3d. 606, 608 (3d Dep’t 2018).

[6] New York also provides for “SLAPP-back” actions, in which a SLAPP victim can file a separate action for damages. See N.Y. Civ. Rights Law § 70-a. Because this remedy requires the defendant to endure a lawsuit to resolution before seeking relief, it is useless to a defendant who lacks the resources to litigate.

[7]Julianne Hill, Legal challenges over online reviews seek to separate facts from fiction, ABA Journal (Jul. 1, 2016), http://www.abajournal.com/magazine/article/legal_challenges_over_online_reviews_seek_to_separate_fact_from_fiction; see also Albert v. Yelp, Inc., No. G051607, 2016 Cal. App. LEXIS 5262 (July 15, 2016) (suit by lawyer against Yelp and former client in connection with negative review).

[8] Ellie Shechet, A Comedian Called Out an Alleged Rapist—And Was Sued for $38 million, Jezebel (Nov. 2, 2017), https://jezebel.com/a-comedian-called-out-an-alleged-rapist-and-was-sued-fo-1819818078; Gabriella Paiella, Comic Kicked Out of UCB for Alleged Sexual Assault Sues for Gender Discrimination, The Cut (Feb. 5, 2918), https://www.thecut.com/2018/02/comic-sues-ucb-after-being-banned-for-alleged-sexual-assault.html; see also Alyssa Leader, A “SLAPP” in the Face of Free Speech: Protecting Survivors’ Rights to Speak up in the “Me Too” Era, 17 First Am. L. Rev 441 (2019) (documenting the national trend).

[9] N.Y. Civ. Rights Law §70-a(1)(a) (“[C]osts and attorney’s fees may be recovered”) (emphasis added); see also W. Branch Conservation Ass'n v. Planning Bd., 222 A.D.2d 513, 515 (2d Dep’t 1995).

[10] See, e.g., Cal. Civ. Proc. Code § 425.16(c)(1); Or. Rev. Stat. §§31.152(3); Tex. Civ. Prac. & Rem. Code § 27.000(b).

[11] See Ketchum v. Moses, 17 P.3d 735, 741 (Cal. 2001) (noting that mandatory fee-shifting “encourages private representation in SLAPP cases, including situations when a SLAPP defendant is unable to afford fees or the lack of potential monetary damages precludes a standard contingency fee arrangement.”; see also Samantha Brown & Mark Goldowitz, The Public Participation Act: A Comprehensive Model Approach to End Strategic Lawsuits Against Public Participation in the USA, Review of European Community and International Environmental Law 19(1):3-13 (Apr. 2010) (“The single most important component of anti-SLAPP legislation is the ability of a defendant to recover attorney’s fees. The ability to recoup fees allows a defendant who otherwise could not afford an attorney to secure one on a contingency basis.”).

[12] Telephone Interview with Evan Mascagni, Policy Director, Public Participation Project (Sep. 17, 2019).

[13] See New Line Realty V Corp. v. United Comms. of Univ. Heights, No. 1021/2004, 2006 N.Y. Misc. LEXIS 2872, *3-4 (Sup. Ct., Bronx Co. 2006).

[14] See id. at *3.

[15] See id. at *9-10

[16] Id. at *10.

[17] See New Line Realty V Corp. v. United Comms. of Univ. Heights, No. 1021-2004, 2008 N.Y. Misc. LEXIS 4867, at *8 (Sup. Ct., Bronx Co. 2008) (proceeding two years later).

[18] See Betsy Morais, Anti-SLAPP Ruling Cheers Tenant Advocates, City Limits (Aug. 18, 2008), https://citylimits.org/2008/08/18/anti-slapp-ruling-cheers-tenant-advocates/.

[19] See, e.g., Cal. Civ. Proc. Code § 425.16.; Or. Rev. Stat. §§31.150-155.; Tex. Civ. Prac. & Rem. Code §§ 27.001–27.011. ; D.C. Code §§ 16­–5502–5505.

[20] Cal. Civ. Proc. Code § 425.16(e)(3).

[21] Id. at (e)(1), (e)(2).

[22] Vogel v. Felice, 127 Cal. App. 4th 1006, 1015 (2005).

[23] See Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000).

[24] See, e.g., Navarro v. Cruz, No. B216885, 2010 WL 2183227 (Cal. Ct. App. June 2, 2010).

[25] See Kibbler v. N. Inyo Cty. Local Hosp. Dist., 39 Cal. 4th 192 (2006).

[26] See Cal. Civ. Proc. Code § 425.16(c)(1).

[27] N.Y. Legis. S. S-52. Reg. Sess. 2019-2020, §1.

[28] Id. at § 2.

[29] Cal. Civ. Proc. Code § 425.17(c).

[30] See, e.g., Metabolife Int'l v. Wornick, 72 F. Supp. 2d 1160, 1172 (S.D. Cal. 1999) (“Because the safety of Metabolife 356 remains an open question of substantial public importance, contributions to the debate are protected by the First Amendment.”); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003).

[31] Cal. Civ. Proc. Code § 425.17(c).

[32] See, e.g., Physicians Comm. for Responsible Med. v. Tyson Foods, Inc. 119 Cal. App. 4th 120, 130 (2004) (misrepresentations in advertisements for chicken products); Metcalf v. U-Haul Int’l, Inc., 118 Cal. App. 4th 1261, 1266 (2004) (misrepresentations in advertisements about the size of storage units).

[33] See, e.g., New.net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1103-1104 (C.D. Cal. 2004); Troy Group, Inc. v. Tilson, 364 F. Supp. 2d 1149, 1155 (C.D. Cal. 2005).

[34] See, e.g., Tex. Civ. Prac. & Rem. Code §§ 27.010(b); Okla. Stat. tit. 12, § 1439 (2); D.C. Code §§ 16­–5505(1).

[35] The legislative history indicates reliance on the opinion of Professor Penelope Canan, who coined the term “SLAPP”: “Wealthy corporate defendants, some with their own legal departments, simply do not suffer the chilling effect on their rights when faced with a lawsuit claiming, for example, false advertising or fraud or illegal business practices, that common citizens suffer when sued for speaking out.” Report of Senate Judiciary Committee on Senate Bill No. 515 (2003).

[36] Content-based regulation of speech is normally subject to strict scrutiny. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 (1990); Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 573 (1987). But regulation of commercial speech must withstand intermediate scrutiny. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980); Bd. of Tr. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989).

[37]  Cal. Civ. Proc. Code § 425.17(c) (2012).

[38]  See Club Members for an Honest Election v. Sierra Club, 196 P.3d 1094, 1099 (2008) (The “public interest” referred to in section 425.17(b), does not simply describe topics that members of the public might find interesting. Instead the term “public interest” is used to define suits brought for the public's good or on behalf of the public. To qualify under section 425.17(b)'s exception, suits must be brought solely to secure this public benefit.”); see also Found. for Taxpayer & Consumer Rights v. Garamendi Garamendi, 132 Cal. App. 4th 1375 (2005) (seeking to invalidate a statute as in violation of the state constitution); Tourgeman v. Nelson & Kennard, 222 Cal. App. 4th 1447 (2014) (seeking only a class-wide injunction in relation to unfair debt collection practices); Murphy v. Twitter, Inc., 2019 Cal. Super. LEXIS 129 (seeking only class-wide injunctive and declaratory relief in relation to contract and unfair business practices claims against Twitter); but see People ex rel. Strathmann v. Acacia Research Corp., 210 Cal. App. 4th 487 (2012) (applying the exception in a qui tam case).

[39] See Colo. Rev. Stat. § 13-20-1101(8)(a)(II).