In Federal Court, Only Part of the Anti-SLAPP Law Applies.
New York’s anti-SLAPP law provides three main protections: (1) a procedural mechanism for expedited dismissal of SLAPPs upon demonstrating that a legal claim is retaliatory and meritless; (2) mandatory attorneys’ fees; and (3) a higher standard of liability for defamation and other similar claims. But while a SLAPP target can use all three protections in state court, in federal court, the first is not available, and it is so far unclear whether the second is available. The third protection, however, applies in federal court.
In addition to providing the procedural and monetary remedies that are typical of anti-SLAPP laws, New York’s law contains a unique provision requiring litigants asserting defamation and similar claims to prove a higher standard of liability:
In an action involving public petition and participation, damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.
New York Civil Rights Law § 76-a(2). This provision is most commonly applied to the claim of defamation – “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.” Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 (1st Dept 2014). But by the statute’s terms, the provision applies to any cause of action that entails proving the defendant’s knowledge that an actionable statement was false.
Traditionally, proving defamation requires demonstrating different levels of intentionality behind a false statement, depending on whether the person alleging defamation is a private or public figure: private figures must establish only negligence, while public figures must establish “actual malice,” which entails either actual knowledge of falsity or reckless disregard for truth. See Gottwald v. Sebert, 40 N.Y.3d 240, 251 (2023). But under New York’s anti-SLAPP law, if an action arises from speech or petitioning activity regarding issues of public concern, the higher “actual malice” standard applies, even if the defendant is a private figure. See Balliet v. Kottamasu, Index No. CV-008128-22/KI, 175 N.Y.S.3d 678, 687 (Civ. Ct., Kings County, Aug. 9, 2022) (citing Palin v. N.Y. Times Co., 510 F. Supp. 3d 21, 25 (S.D.N.Y. 2020)).
In state court, defendants sometimes utilize the actual malice provision together with the law’s procedural and remedial provisions. A defendant can obtain dismissal by arguing that a retaliatory claim is meritless because the plaintiff has failed to demonstrate actual malice, and then seek attorneys’ fees upon dismissal. See, e.g. Comic Strip Productions v. Envivo, LLC, Index No. 150484/2022, 2023 NY Slip Op 31112(U) (NY County, Apr. 11, 2023) (exemplifying this approach); Carey v. Carey, Index No. 152192/2021, 160 N.Y.S. 3d 854 (NY County, Feb. 15, 2022) (same). In state court, there is typically no reason to invoke the actual malice provision as a basis for dismissal without seeking fees, because fee-shifting is mandatory upon dismissal.
But in federal court, this combined defense is not available. Federal district courts in the Second Circuit have generally held that the anti-SLAPP law’s dismissal and summary judgment standards conflict with the Federal Rules of Civil Procedure’s corresponding standards and thus do not apply in federal court. See, e.g. Carroll v. Trump, No. 20-cv-7311, 590 F. Supp. 3d 575, 582-85 (S.D.N.Y. 2022) (holding that the anti-SLAPP motion-to-dismiss and summary judgment provisions did not apply in a defamation action); see also Coritsidis v. K’hal Bnei Torah of Mount Ivy, No. 22-cv-10502, 2024 U.S. Dist. LEXIS 2440, at *13 (S.D.N.Y. Jan. 3, 2024) (collecting cases holding the same).
The actual malice provision, however, does apply in federal court. See, e.g., Atas v. New York Times Co., No. 22-cv-853, 2023 U.S. Dist. LEXIS 156239, at *12 (S.D.N.Y. Sep. 5, 2023) (“[C]ourts in this District apply the substantive portions of the New York anti-SLAPP statute even if certain procedural elements may be precluded by the Federal Rules of Civil Procedure.”). Accordingly, in federal court, defendants sometimes utilize the actual malice provision on its own. For example, in Atas, The New York Times obtained dismissal of the plaintiff’s defamation claim based on an article describing allegations of online harassment against her and a related criminal proceeding.
The unavailability of procedural anti-SLAPP protections in federal court partly undermines the law’s effectiveness, by enabling forum-shopping: SLAPP-filers in New York can file a case strategically in federal court in order to evade the anti-SLAPP dismissal procedure. But SLAPP-filers who assert defamation and similar claims must overcome the actual malice requirement in any forum.