‘The Heat Has Ratcheted Up’: What to Know About New York’s Latest Anti-SLAPP Ruling

Publishers are buying more libel insurance in the face of rising litigiousness against journalists

Suing media organizations just as a scare tactic is getting harder. Trent Joaquin/Getty Images
Headshot of Lucinda Southern

In a win for publishers, New York has upped protections for journalists and media organizations that face threatening, but ultimately bogus, lawsuits against them. 

Last week, New York Governor Andrew Cuomo signed a new law designed to curb abusive “strategic lawsuits against public participation,” known as SLAPPs. These lawsuits, which typically waste time and money, are filed as a scare tactic used by the rich and powerful (such as politicians, who are raising the libel flag more frequently). In these cases, the plaintiff knows they have little very hope of winning. But a straightforward legal victory in court isn’t always the goal. 

Litigation is long and ruinously expensive. New York’s update brings it in line with 30 other states with similar statutes. Here’s a primer on the new law.

How have these media company protections been used in practice?

SLAPP cases have been around for a long time. About 30 states and Washington, DC have a version of anti-SLAPP laws on the books. New York’s legal protection was first enacted in 2008. In essence, the law was intended to strengthen first amendment protections ensuring a free press to better balance the affluent’s ability to bring their significant legal resources to bear on their battles against bad PR. 

Broadcaster and comedian John Oliver spoke out last November about how his show was embroiled in a SLAPP lawsuit for criticizing a mining mogul. The 26-minute long YouTube video has 12.5 million views.   

Before he was president, Donald Trump leveled one of the most expensive libel suits against author and journalist Timothy O’Brien for claiming in his 2005 book “TrumpNation: The Art of Being The Donald” that Trump was not as wealthy as he claimed.

“I spent a couple of bucks on legal fees and they spent a whole lot more. I did it to make his life miserable, which I’m happy about,” Trump said at the time. Trump, who then and now is famously litigious, lost the suit after an appeal upheld a judge’s decision to dismiss it. 

Is this legal situation getting worse for media companies?

Anecdotally, the “heat has ratcheted up a little more this year” on high-profile and concerning SLAPPs case, said Dan Novack, lawyer and chairman of the media bar committee. 

The Trump administration’s defamation suit against a Wisconsin TV station for running a political ad was “scary,” said Novack, especially considering this happened in one of the nation’s smallest media markets. Political advertising is the lifeblood of local TV networks. Not only is there fear of losing revenue for not running ads, but there’s a very real fear about being forced to pay pricey legal fees to defend free speech. 

It’s not just smaller, less lawyered-up media organizations facing this problem. Individuals are also at greater risk when it comes to expressing their views against corporations on social media, according to examples from a New York Times opinion piece this year. In fact, the highest volume of SLAPPs involve real-estate issues, environmental activists, animal rights and public officials, according to Reporters Committee for Freedom of the Press

Libel insurance, taken out by media companies to protect themselves, has increased this year, said Novack, although he couldn’t share figures.  

So what’s new with this law?

New York’s initial attempts at anti-SLAPP protections date back to the early 1990s after a ripple of bogus cases from buoyant real-estate companies were leveled to silence their critics, mostly environmental activists. But until now, that law had been incredibly narrow and only applied to a very specific segment of people. That threshold has been lowered to extend to almost everyone.

@Lucy28Southern lucinda.southern@adweek.com Lucinda Southern is Adweek's media editor.