Free Speech Gets New Protection In New York

December 29, 2020

By: David Rabinowitz and Philippe A. Zimmerman

New York recently broadened the law that penalizes a plaintiff who tries to stifle free speech on an issue of public interest by frivolously suing the speaker. Under the expanded anti-Strategic Lawsuit Against Public Participation law, commonly referred to as an anti-SLAPP law, anyone who is sued for speaking publicly on an issue of “public interest” can recover their counsel fees from the plaintiff if the lawsuit doesn’t have a “substantial basis” and can’t be supported by a substantial argument to change existing law.

A key aspect of the expanded law is the broad construction of protected issues of “public interest” to include any issue other than a purely private matter. Other notable changes require courts to (i) stay all other proceedings, including discovery, while considering motions to dismiss under the law and (ii) award costs and attorney’s fees if a claim is dismissed based on the law.

The statute’s penalty of requiring the plaintiff to pay the defendant’s counsel fees, unusual in American law, should cause hesitation in any person inclined to file a lawsuit attacking public speech, since they may lose their case and have to pay the defendant’s counsel fees as well as their own.  The defendant can even recover compensatory and punitive damages if the court finds that the plaintiff sued with an improper motive.

Although the new law does not repeal any laws constraining public speech, such as defamation, fraud, false advertising, trademark or copyright infringement, what it does do is prevent well-heeled or vengeful plaintiffs from filing legally baseless lawsuits if they don’t like what is being said about them in public.

The precise scope of the law – specifically, when does a lawsuit lack “substantial basis” and what issues are of “public interest” – will be fleshed out by the courts in coming years. But anyone engaged in an industry involving public speech – journalism, public relations, and advertising, for example – now has a powerful new weapon in New York against malicious litigation, as the uncertainty of the new law’s scope should make potential plaintiffs think long and hard before filing a case based on public speech.