a. Introduction
Anti-SLAPP laws offer protection from Strategic Lawsuits Against Public Participation (“SLAPP”) suits brought by individuals or entities seeking permits or applications from a government body (like a zoning permit) over efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission. The statute does not protect “free speech” in the abstract; in only protects bloggers, non-traditional journalists, and other online publishers when they address a narrow class of issues (e.g. the granting or denial of a public permit or application). The statute gives a person the ability to move to dismiss a complaint brought against him or her by a public applicant or permittee over the person’s efforts to report on, comment on, challenge, or oppose an application to the government.
In order to use the New York anti-SLAPP law, a litigant must show two things: (1) that the plaintiff is a “public applicant or permittee.” (2) that the plaintiff’s claim against defendant is an “action involving public petition and participation.” A “public applicant or permittee” is an individual or entity that has obtained or is seeking “a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body.” The term could include real estate developers, mining companies, garment manufacturers, and private landowners looking to build new structures on their land, among others. In essence, to meet this requirement, a party will have to show that the party suing him or her requires some sort of government license to operate or proceed with a project. The statute defines an “action involving public petition and participation” as one that involves a public applicant or permittee (above) seeking damages from a defendant on the basis of the defendant’s efforts “to report on, comment on, rule on, challenge or oppose” the application to the government. For example, the definition would include a garment manufacturer’s lawsuit against a public interest organization campaigning to have the manufacturer’s state registration revoked. For another, the definition would include a real estate developer’s lawsuit against a blogger who reported on the developer’s attempts to secure a building permit, or who called upon local citizens to oppose the application.
Although it is unlikely, it is possible that an individual involved in some sort of public action might try to use the Anti-SLAPP laws to deter individuals trying to prevent them from commenting on, etc. his or her efforts to enforce his or her rights.
b. Text of Statutes
1) N.Y. Civ. Rights Law § 70-a – Actions involving public petition and participation; recovery of damages.
(1) A defendant in an action involving public petition and participation, as defined in paragraph (a) of subdivision one of section 76-a of this article, may maintain an action, claim, cross claim or counterclaim to recover damages, including costs and attorney’s fees, from any person who commenced or continued such action; provided that:
(a) Costs and attorney’s fees may be recovered upon a demonstration that the action involving public petition and participation 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;
(b) Other compensatory damages may only be recovered upon an additional demonstration that the action involving public petition and participation was commenced or continued for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights; and
(c) Punitive damages may only be recovered upon an additional demonstration that the action involving public petition and participation was commenced or continued for the sole purpose of harassing, intimidating, punishing or continued for the sole purpose of harassing, intimidating, punishing, or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.
(d) The right to bring an action under this section can be waived only if it is waived specifically.
(e) Nothing in this section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, or by statute, law or rule.
2) N.Y. Civ. Rights Law § 76-a – Actions involving public petition and participation; when actual malice to be proven.
(1) For purposes of his section:
(a) An “action involving public petition and participation” is an action, claim, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.
(b) “Public applicant or permittee” shall mean any person who has applied for or obtained a permit, zoning change, lease, license certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission.
(c) “Communication” shall mean any statement, claim, or allegation in a proceeding, decision, protest, writing, argument, contention or other expression.
(d) “Government body” shall mean any municipality, the state, any other political subdivision or agency of such, the federal government, any public benefit corporation or any public authority, board or commission.
(2) 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
(3) Nothing in this section shall be construed to limit any constitutional, statutory or common law protections of defendants to actions involving public petition and participation.
3) N.Y. C.P.L.R. § 3211(g) – Standards for motions to dismiss in certain cases involving public petition and participation. A motion to dismiss based on paragraph seven of subdivision (a) of this section, in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation as defined in paragraph (a) of subdivision one of section seventy-six-a of the civil rights law, shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant preference in the hearing of such motion.
4) N.Y. C.P.L.R. § 3212(h) – Standards for summary judgment in certain cases involving public petition and participation. A motion for summary judgment, in which the moving party has demonstrated that the action, claim, cross claim, or counterclaim subject to the motion is an action involving public petition and participation, as defined in paragraph(a) of subdivision one of section 76-a of the civil rights law, shall be granted unless the party responding to the motion demonstrates that the action, claim cross claim or counterclaim has a substantial basis of fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant preference in the hearing of such motion.
c. Cases
Research is ongoing. My search of New York cases citing these statutes did not reveal any cases that are factually relevant or analogous to WMC’s target situations.
d. Practice Pointers
There are no relevant practice pointers to add here at this time.