New York has enacted new legislation that significantly expands and adds bite to its formerly narrow, relatively toothless anti-SLAPP statute. This is a significant development, especially because New York is a core source of news, media and entertainment content and the home of many of the most vibrant companies in these industries.

Before the specifics, some ABCs.
SLAPP is an acronym for “Strategic Lawsuits Against Public Participation,” meaning lawsuits that challenge a defendant’s exercise of free speech or other First Amendment rights without having a substantial basis for doing so.

Anti-SLAPP statutes are intended to protect First Amendment rights by deterring plaintiffs from filing baseless defamation and right of privacy/publicity lawsuits in the first place and by providing protections to defendants when they do.

New York’s prior anti-SLAPP statute suffered from two major flaws.
First, it applied only to lawsuits that parties seeking permits, zoning changes or other public permissions from New York State or its agencies filed against defendants based on their reporting on, commentary about or challenges to the requested permits. As such, many lawsuits that asserted claims against defendants based upon  the exercise of their free speech rights fell outside the protections of the statute.

Second, it did not provide a meaningful remedy to defendants named in lawsuits within the scope of the statute. The statute provided courts with discretion to award legal fees and, thus, left open the possibility that defendants would not receive a fee award even if they prevailed.

The new statute expands the scope of “SLAPP” lawsuits that it protects against.
New York’s anti-SLAPP statute now applies to claims based on:

“any communication in a public 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”

The statute also provides that the term “public interest” should be “construed broadly, and mean any subject other than a purely private matter.” As a result of these changes, New York’s anti-SLAPP statute now applies far more broadly, including in response to free speech challenges to political comment, social discussion and entertainment and new media content.

The new statute adds procedural and substantive “teeth.”
The statute does this in multiple ways. A defendant may file a motion to dismiss a SLAPP suit in lieu of filing an answer or may raise its rights under the statute on a motion for summary judgment. The filing of an anti-SLAPP motion automatically stays all discovery. Further, unlike other motions to dismiss, in which the allegations in the complaint are presumed true and the defendant cannot (with very limited exceptions) submit documentation to support the motion, a defendant may support its anti-SLAPP dismissal motion with affidavits and additional documents.

Perhaps, most significantly, once the defendant demonstrates that the SLAPP lawsuit involves claims concerning the defendant’s exercise of its free speech rights on a matter of “public interest,” the plaintiff bears the burden of demonstrating that its claim has a “substantial basis in law”or is supported by a “substantial argument” to modify existing law in order to avoid dismissal.

Not only do the foregoing protections provide a defendant with the ability to limit the scope and expense of lawsuits challenging the exercise of their free speech rights until after its anti-SLAPP motion is resolved, but also, under the new statute, a successful defendant must receive an award of its legal fees.

A few uncertainties.
At least three issues are likely to be the subject of litigation under the new statute. First, the statute does not define what constitutes the “substantial basis” a plaintiff must establish to survive an anti-SLAPP motion challenge. Even without such a definition, the question here seems to be not if the burden on a plaintiff to survive an anti-SLAPP motion challenge is higher than on any other motion to dismiss, but rather how much more a plaintiff must show to satisfy the statute’s “substantial basis” threshold. .

Second, while the statute took effect immediately upon its enactment on November 10, 2020, will it be applied retroactively to lawsuits pending in the courts as of that date? While its “remedial” purpose in preserving the exercise of free speech rights is a factor in favor of retroactive application, whether it will be so applied awaits resolution in the courts.

Finally, how will federal courts apply the New York anti-SLAPP statute? This question has been the subject of litigation involving the anti-SLAPP statutes of other states that establish enhanced pleading or burden-of-proof requirements on “SLAPP” claims covered by those statutes. For example, the Second Circuit recently held that California’s anti-SLAPP statute was inapplicable in federal court because it increased a plaintiff’s burden to avoid pretrial dismissal of its claims and, thus, conflicted with Federal Rules of Civil Procedure 12 and 56 (governing motions to dismiss and for summary judgment, respectively). See La Liberte v. Reid, 966 F.3d 79, 83 & 88 (2d Cir. 2020).

Final Word.
New York’s new anti-SLAPP statute is a significant step. Defendants who are sued based upon the exercise of their free speech rights now have an important weapon to make an early challenge to such lawsuits and recover attorneys’ fees if they succeed. While the statute creates new protections for the exercise of these rights, the full extent of its protections turns largely on how broadly courts will construe the statute’s “substantial basis” burden and whether federal courts will enforce some or all of the statute’s protections.

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