The Application of the New York Anti-SLAPP Scheme in Federal Court
44 Pages Posted: 20 Jan 2023 Last revised: 14 Apr 2023
Date Written: January 18, 2023
In 2020, the New York Legislature amended the 1992 anti-SLAPP scheme. That scheme, meant to discourage strategic lawsuits against public participation (SLAPPs), had failed to serve its purposes. The 2020 amendments broadly expanded its scope and the strength of its protections. Yet, courts have adopted a cautious approach to the amendments, giving them a narrow compass in several cases. This Article discusses the most worrying result of this approach: courts’ reticence to apply the anti-SLAPP scheme in federal court. This issue has new urgency as Supreme Court justices call for overruling of certain federal free speech protections while politically motivated defamation lawsuits are on the rise. Indeed, in lieu of federal protections, state anti-SLAPPs are one of the few things standing in the way of thin-skinned litigants seeking retribution—not redress—in court. This Article argues that most of the New York anti-SLAPP scheme applies in federal court, advancing an affirmative case and deconstructing contrary case law. Specifically, it concludes the law’s cause of action for damages and its modifications to the elements and burdens of a SLAPP plaintiff’s claims apply in federal court. As to the law’s seemingly procedural provisions, it concludes their application depends on how courts interpret Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. It also identifies the source of courts’ many analytical errors in this context, explaining how judges have fundamentally misunderstood the text, structure, and operation of the anti-SLAPP scheme by conflating it with other states’ anti-SLAPP laws. It concludes by calling on courts to go back to statutory and constitutional basics to determine the applicability of New York’s anti-SLAPP scheme.
Keywords: Anti-SLAPP, Free Speech, First Amendment, Federal Courts
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