In recent years, numerous states have enacted laws to deter so-called “SLAPP” suits—i.e., strategic lawsuits against public participation. These anti-SLAPP laws provide procedural protections for individuals and entities that are sued as punishment for—and to deter them from—speaking out on public matters. The anti-SLAPP laws provide various protections to the defendants named in SLAPP suits, including in some cases (1) expedited consideration of a defendant’s motion to dismiss a SLAPP suit, and (2) a framework for evaluating a defendant’s motion to dismiss that shifts the burden to the plaintiff to demonstrate a likelihood of success on the merits of its underlying claim in order to avoid dismissal. Moreover, when a SLAPP suit is dismissed, the anti-SLAPP laws typically afford the defendant the right to recover its costs and attorney fees, and sometimes compensatory and punitive damages.
Although New York has enacted an anti-SLAPP law, its protections are weak as compared to the anti-SLAPP laws in other states. For example, the New York law applies only when a lawsuit is “materially related” to the defendant’s public statements about the plaintiff’s application to a “government body” for “a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act.” N.Y. Civil Rights Law §76-a. Accordingly, while the New York anti-SLAPP law protects a defendant who speaks out against a plaintiff’s application for a government benefit, it does not protect a defendant who is sued for speaking out about a matter of public concern unrelated to such an application. Moreover, even if an underlying lawsuit qualifies as a SLAPP suit, the defendant can only recover its costs and fees if the suit “was 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”—a standard that is rarely met. N.Y. Civil Rights Law §70-a.
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