It is well established that the First Amendment’s right to petition clause affords constitutional protection to the bringing of lawsuits, even those that lose, so long as they are not frivolous. But in recent years, many states, including New York, have imposed a high price on the exercise of that constitutional right. Thus, in 2020, New York significantly revised its anti-SLAPP Act (Civil Rights Law §§ 70-a and 76-a) to vastly expand the scope of cases that fall within its purview. The purpose of the bill was described in the bill jacket as to “protect citizens from frivolous litigation.”
In practice, however, the amendments have not been confined to frivolous lawsuits and have often had the effect of stifling defamation lawsuits, even if brought in good faith to redress significant reputational harm. The statute makes life difficult for defamation plaintiffs through its combination of (1) heightened, evidence-based dismissal rules applied before discovery; (2) a heightened fault standard; (3) an automatic stay of most discovery once a defendant files an anti-SLAPP motion to dismiss; and (4) mandatory fee-shifting when a plaintiff cannot meet the statute’s “substantial basis” threshold. The result is that plaintiffs with colorable, good-faith claims face a Hobson’s choice: abandon the suit or risk a costly, early, evidence-driven showdown they may be unable to win without discovery.
New York’s anti-SLAPP Act applies to actions “involving public petition and participation.” Prior to the 2020 amendments, only a limited number of cases were so classified. Following the amendments, however, the definition of “public petition and participation” was broadened to encompass all communications made “in connection with an issue of public interest,” which courts were directed to construe broadly. See N.Y. Civ. Rights Law § 76-a. Suddenly, almost all defamation lawsuits—even those brought by individuals against large media conglomerates—fall within the anti-SLAPP Act’s onerous grasp.
Most importantly, the statute creates a special early dismissal mechanism through CPLR 3211(g), under which a plaintiff must show that the claim has a “substantial basis in law.” In Reeves v. Associated Newspapers, Ltd., 228 A.D.3d 75 (1st Dep’t 2024), the First Department interpreted this requirement as obligating a plaintiff to present “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” Importantly, the anti-SLAPP Act also requires a plaintiff to show that the statements were published with actual malice—the highest fault burden applicable to a defamation claim. See N.Y. Civ. Rights Law § 76-a(2). These burdens are summary-judgment-like in nature, but unlike all other litigants facing such a standard to survive dismissal, a plaintiff in a defamation case must typically make this evidentiary showing without discovery, because discovery is stayed pursuant to the anti-SLAPP legislation.
Crucially, if a plaintiff cannot meet this heightened standard—that the claim has a “substantial basis”—the prevailing defendant is entitled to reasonable costs and attorneys’ fees. N.Y. Civ. Rights Law § 70-a. The fee shifting called for under the anti-SLAPP Act is not merely remedial. The bill jacket justified changing fee shifting from discretionary to mandatory on the basis that an award of costs and fees would be required only if the court found that the case had been initiated or pursued in bad faith.
However, this is not how courts have applied the statute. Instead, courts automatically award fees and costs whenever a defamation plaintiff loses a motion to dismiss, even when not finding that the case was brought or pursued in bad faith. As a result, a plaintiff with a good-faith belief in their cause of action could be liable for hundreds of thousands of dollars if they are unable to produce evidence of the defendant’s state of mind prior to discovery. Thus, while the sponsor of the amendments in the State Senate, Brad Hoylman-Sigal, wrote that the proposed changes would “not discourage meritorious litigation,” that prediction appears, at best, questionable.
Consider what this means in practice. A hypothetical individual plaintiff may be able to prove that a media conglomerate acted negligently and irresponsibly by publishing false claims that savaged the plaintiff’s reputation. However, because the plaintiff is not provided with the discovery necessary to prove that the conglomerate also acted with actual malice, the individual will not only suffer dismissal of the lawsuit but will also be ordered to pay the legal fees charged by the media company’s expensive lawyers.
As a result, corporate defendants have every incentive to litigate aggressively on a motion to dismiss. This dynamic heavily favors institutional defendants with the sophistication and resources to mount a full-fledged, aggressive motion to dismiss over individual plaintiffs who lack comparable resources. For smaller plaintiffs, the potential ramifications of losing an anti-SLAPP motion—and being responsible for hundreds of thousands of dollars in legal fees—can be truly existential.
While the New York State Bar Committee on Media Law supported the bill, claiming it would provide “critical protection from powerful individuals who file baseless claims” and would “ensure a level playing field between the powerful and powerless by requiring SLAPP plaintiffs to cover defendants’ legal expenses in the event of a dismissal,” that position ignores the reality that many defamation claims are brought by private individuals without significant resources against large media entities.
By attempting to “level” the playing field by giving all defendants an advantage, New York’s anti-SLAPP Act has instead tilted the balance in favor of large institutional defendants at the expense of private individuals seeking to restore their reputations. Another consequence of the amendments is that defamation plaintiffs who can bring their cases in federal rather than state court increasingly choose to do so, as under the Erie doctrine, the statute’s onerous procedural provisions are likely unenforceable in federal court.
Defamation law has always attempted to balance two critical components of the First Amendment: a plaintiff’s right to petition the courts for redress and a defendant’s right to free speech. By tilting the scales so heavily in favor of defendants—both in the burden required to survive a motion to dismiss and in the penalty imposed when a plaintiff fails to do so—New York’s amended anti-SLAPP Act risks weeding out all but the most ironclad defamation suits, while everyday people and smaller entities find the courthouse doors effectively closed to them.
Thus, while the 2020 amendments may have been intended to prevent frivolous lawsuits, the Act’s broad application, heightened fault requirement, evidentiary burden on pre-discovery motions to dismiss, and mandatory fee shifting have created a regime that may deter most defamation lawsuits regardless of their underlying merit.
Authors:
Madelyn K. White, Partner
white@clm.com
Alan S. Lewis, Partner
lewis@clm.com