New York

CORRECTION: New York should have received an overall score of 99 and an overall grade of A+. The report failed to account for how New York procedures relate to the timing of an anti-SLAPP appeal. New York should have received 25 points for “Right to an Immediate Appeal” instead of 0 points. This would have given New York an Anti-SLAPP procedures subscore of 97 and subgrade of A. For more details on how exactly New York law procedures work in this area, see note below. (May 18, 2022)

Covered Speech: A+
Anti-SLAPP Procedures: B-
Covered Speech: 100 out of 100 points
Anti-SLAPP Procedures: 72 out of 100 points
Detailed Scoring on Anti-SLAPP Procedures  
Suspension of Court Proceedings Upon an Anti-SLAPP Motion: 20 of 20 points
Burden of Proof on Plaintiff to Defeat an Anti-SLAPP Motion: 12 of 12 points
Right to an Immediate Appeal: 0 of 25 points
Award of Costs and Attorney Fees: 40 of 40 points
Expansive Statutory Interpretation Instruction to Courts: 0 of 3 points

How to Improve New York’s Score

While the state already has a reasonably strong anti-SLAPP law, it could be significantly improved with one minor change. The law does not include a right to an “interlocutory” appeal. Speaking generally, that is a request to a higher court for it to decide a particular issue immediately. In most litigation, interlocutory appeals are difficult to obtain, so this right of appeal is an important feature of an anti-SLAPP law. Without it, a defendant who loses an anti-SLAPP motion would be forced to continue to litigate the entire trial before the finding on the motion could ever be appealed.

As attorney Ken White has eloquently explained, the provision of a right of interlocutory appeal creates a strong protection for First Amendment liberties, because it “dramatically reduces the coercive effect of filing a lawsuit targeting speech.”

With this one change, the anti-SLAPP procedures subgrade would rise to A and the overall grade would rise to A+.

State Anti-SLAPP Statute

New York State’s anti-SLAPP statute[1] protects any communication in a place open to the public or a public forum in connection with an issue of public interest. It also protects lawful conduct that furthers either the exercise of free speech in connection with an issue of public interest or the exercise of the right of petition. The scope of the statute was broadened in late 2020, making a significant portion of case law that had interpreted its previous iteration largely irrelevant. Although discovery, pending hearings, and motions are stayed once an anti-SLAPP motion is filed, a court may nonetheless order limited discovery to be conducted if the respondent shows that the stay prevents the presentation of essential facts. In order to prevail against an anti-SLAPP motion, the respondent must show either that the action has a substantial basis in fact and law or that it is supported by a substantial argument for an extension, modification, or reversal of existing law. The statute does not provide for the interlocutory appeal of a decision on an anti-SLAPP motion. The court must award costs and attorney fees to the prevailing party if it finds that the action commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law; other compensatory and punitive damages are allowed if the court finds additional aggravating circumstances.

NOTE (May 18, 2022): Because New York law creates an appeal as of right with respect to many different kinds of judicial orders, it appears to allow for interlocutory appeal of all orders that spring from an anti-SLAPP motion. See NY CPLR Rule 5701, especially 5701(a)(2)(iv), (a)(2)(v), and (a)(2)(vi). The Anti-SLAPP report failed to account for this aspect of New York law. As such, aspects of this description are incorrect with regard to interlocutory appeal timing.

[1] N.Y. Civ. Rights Law § 70-a and § 76-a; see also NY CPLR Rule 3211.

Dan Greenberg & David Keating