New York Legislature Passes Bill to Protect Free Speech From Frivolous Lawsuits

Times Square on April 6, 2020 in New York City- near empty street - Getty-H 2020
Kena Betancur/Getty Images

New York lawmakers have taken a step to protect free speech from frivolous lawsuits. On Wednesday, the state legislature voted to give local judges the ability to pause court proceedings and weigh the merit of legal claims whenever First Amendment activity on an issue of public interest is on the line. If signed by Gov. Andrew Cuomo, the legislation may also deter so-called strategic lawsuits against public participation (SLAPP) by shifting a defendant's legal costs to losing plaintiffs.

For years, despite being home to many media outlets, New York has maintained a very weak anti-SLAPP law. Unlike about two dozen other states with special protections for the First Amendment, New York's version only protected defendants in legal actions involving public petition and participation. For example, it potentially covered those challenging zoning ordinances. Until now, New York's anti-SLAPP law couldn't head off, for example, a libel suit aimed at intimidating an individual from speaking out about sexual abuse or fraud or some other crime.

That could be changing.

New York Senator Brad Hoylman crowed about today's passage of the bill he sponsored to amend the state's civil practice to allow for early adjudication of legal actions targeting communications to the public and conduct in furtherance of free speech rights on matters of public interest.

"For decades, powerful men like Donald Trump and Harvey Weinstein have abused our justice system to silence, intimidate, and impoverish their critics with frivolous lawsuits known as SLAPPs," he tweeted. "Today New York slaps back."

Although a broad anti-SLAPP bill in New York has long been a goal for advocates in entertainment and media, it won't end controversy on the SLAPP front.

For the moment, even if Governor Cuomo signs the bill, it might only apply in state and local courts, potentially not federal courts in what some worry would mean more forum-shopping. Cases under federal jurisdiction in New York (including those where plaintiffs and defendants hail from different states) might not enjoy such anti-SLAPP protection thanks to a decision last week by the 2nd U.S. Circuit Court of Appeals. There, a libel suit against MSNBC host Joy Reid was revived upon the appellate circuit's conclusion that California's SLAPP law presented an impermissible procedural conflict with the federal rules of civil procedure. There's currently a circuit split around the nation about whether federal judges can entertain anti-SLAPP motions. That issue seems destined for the Supreme Court unless U.S. Congress passes federal anti-SLAPP legislation.