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

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. According to Novack, the updated anti-SLAPP had been in the works for the last couple of years and had gained some momentum of being passed earlier this year before Covid-19 put the brakes on it. “Now, with more democratic control, so many things are passing,” he said. Are there any other changes? One notable difference in this updated legislation is that the burden of payment is placed on the plaintiff who brings an unmerited charge against a journalist or individual using their first amendment rights. The prospect of having to pay the legal fees of the person you’re accusing suddenly makes litigation much less appealing. There are other legal checks and balances that prevent cases running on too long in a discovery process (which costs money). What are the publishers saying? “The amendment in the anti-SLAPP law is an important step forward for press freedom in New York,” said a New York Times spokesperson. “This legislation will help ensure that lawsuits aimed at silencing journalists and others who speak about matters of public interest can be dismissed more quickly, and that those who successfully defend against such lawsuits will be able to recover their attorneys’ fees and costs,” said Gabe Rottman, director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press. How have anti-SLAPP laws improved issues? There’s little data yet showing the benefits of anti-SLAPP laws, because they prevent damages being done. California's highly respected anti-SLAPP protections were enacted in 2009. Now New York has caught up. Those two states encompass a sizable chunk of the media businesses in the US, said Gary Kibel, digital media lawyer at law firm Davis and Gilbert. The enduring issue is that, in theory, a Californian businessman could still sue a New York media company in West Virginia, which is one of the 20 states that still have no anti-SLAPP laws. For now, there’s no indication that a federal anti-SLAPP law will be passed. “[The New York law] makes perfect sense when you read the statute,” said Kibel. “The balance is making sure it’s there to punish those bringing truly frivolous claims who want to bully people versus quelling people’s right to go to court when they have legitimate claim for fear of having to pay the others’ fees if they lose.”