Written by Timothy M. Carter

The broad speech protections provided by the First Amendment are emblematic of a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open[.]”  New York Times v. Sullivan, 376 U.S. 254, 269–70 (1964).  While this unfettered commitment to free speech may shield a speaker from the chill of liability, practically speaking, it often fails to protect against “the similarly-chilling cost and burden of defending [against] tort claims.”  Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 167–68 (5th Cir. 2009).  Over the years, plaintiffs have weaponized the filing of meritless lawsuits  to intimidate or punish a speaker for exercising their first amendment rights.  Such a suit is known as a Strategic Lawsuit Against Public Participation (“SLAPP”).

In response, a number of states enacted broad anti-SLAPP statutes.  For many years, New York was a notable exception.  However, on July 22, 2020, the New York State legislature enacted A5991A (the “Bill”), which provides anti-SLAPP protection to an “action involving public petition and participation,” which now includes any claims related to: (i) “[a]ny communication in a place open to the public or a public forum in connection with an issue of public interest; or (ii) “[a]ny 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.”  Under the Bill, “public interest” is to be construed broadly to “mean any subject other than a purely private matter.”  The Bill also mandates an award of costs and attorney’s fees “upon a demonstration that a SLAPP suit was commenced or continued without a substantial basis in fact or law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law.”  Moreover, the Bill provides a cost saving measure for potential defendants by staying all discovery, pending hearings, and motions once a motion to dismiss made pursuant to New York’s anti-SLAPP statute is filed.  The stay remains in effect until notice of entry of the order ruling on the defendant’s motion.  As of July 22, 2020, both the Assembly and Senate have passed the Bill, and once signed by Governor Andrew Cuomo, it will take effect immediately.  If signed, New York’s newly expanded anti-SLAPP statute will undoubtedly decrease the cost of challenging allegedly meritless SLAPP suits for defamation and other causes of action that fall within the statute.

Assuming the Bill is signed by Governor Cuomo, the Second Circuit Court of Appeals’ recent ruling in La Liberte v. Reid, No. 19-3574, 2020 WL 3980223 (2d Cir. July 15, 2020), provides an interesting wrinkle in an increasingly uncertain area of law: the applicability of state anti-SLAPP statutes in federal court.  In La Liberte v. Reid, Roslyn La Liberte sued MSNBC host Joy Reid for defamation in the U.S. District Court for the Eastern District of New York alleging that several of Reid’s social media posts falsely accused La Liberte of uttering racist slurs at a teenager during a city council meeting in Los Angeles, California.  The district court, applying California law, dismissed La Liberte’s claim under Federal Rule of Civil Procedure 12(b)(6) and “struck” it under California’s anti-SLAPP statute, granting Reid leave to seek attorneys’ fees pursuant to that statute.  La Liberte v. Reid, 18-cv-5398 (DLI) (VMS) (E.D.N.Y. Sep. 30, 2019).  La Liberte appealed, and the Second Circuit vacated the judgment and remanded.  La Liberte, 2020 WL 3980223, at *10.  The Second Circuit held that California’s anti-SLAPP statute was not applicable in federal court because it conflicted with Federal Rules of Civil Procedure 12(b)(6) and 56.  Id.  In so holding, the Second Circuit joined the Fifth, Eleventh and D.C. Circuits, which issued similar rulings regarding other state anti-SLAPP statutes, and departed from the First and Ninth Circuits.  The current federal circuit split looks primed for Supreme Court review.

Notably, the New York legislature has been especially active recently in the media law area.  A day after passage of A5991A in the New York Senate, another bill – Senate Bill S05959 – passed both houses of the legislature and is awaiting Governor Cuomo’s signature.  S05959 provides for post-mortem rights of publicity as well as a new, private right of action for the unlawful dissemination or publication of a sexually explicit depiction of an individual, including so-called deep fakes.