Strategic lawsuits against public participation, or SLAPPs, are meritless lawsuits designed to chill constitutionally protected speech on matters of public concern. To combat the silencing effect of SLAPPs, and to protect the exercise of First Amendment rights, 31 states and the District of Columbia have adopted anti-SLAPP laws.1 These laws provide critical protections for SLAPP defendants by establishing mechanisms for the prompt dismissal of meritless claims and enabling defendants to avoid unnecessary legal expense. But federal courts sitting in diversity disagree as to whether and how state anti-SLAPP provisions apply in federal court. Now, a series of cases in the Second and Ninth Circuits pose new challenges to the application of New York’s and California’s anti-SLAPP laws in those circuits—raising questions of paramount importance to the news media and other targets of SLAPP suits.
March 16, 2022 Feature
SLAPP-ing Back: Recent Legal Challenges to the Application of State Anti-SLAPP Laws
By Shannon Jankowski and Charles Hogle
SLAPPs and Anti-SLAPPs
Our system of self-governance—and the marketplace of ideas the First Amendment was designed to protect—depends on open debate among an informed public. SLAPPs threaten this free exchange of ideas. Even when SLAPP plaintiffs cannot prevail on the merits, they can punish their targets with time-consuming and costly litigation, thereby deterring similar speech in the future. Indeed, SLAPPs are often brought by the wealthy or influential against the less-well-resourced or powerful. Would-be speakers are forced into a perverse cost-benefit analysis, weighing the value of participating in public debate against the burden of defending against a lawsuit. SLAPPs also have a deleterious effect on the ability of journalists to deliver the news, with the specter of frivolous lawsuits hanging over their reporting on the rich and powerful.
“Anti-SLAPP” laws are generally designed to lower or eliminate the costs and other burdens of defending against SLAPPs, including, for example, by providing mechanisms to obtain dismissal of meritless lawsuits at the earliest stages of litigation, automatically staying discovery, permitting defendants to immediately appeal a trial court’s denial of an anti-SLAPP motion, and permitting defendants who win their anti-SLAPP motions to recover attorney fees and costs.2 Although the types of speech and activities protected by anti-SLAPP laws vary from state to state,3 the majority cover a range of expressive activities protected by the First Amendment,4 including news reporting on matters of public concern.
And the growing national trend is toward more expansive anti-SLAPP protections. For example, in May 2021,Washington became the first state to pass a version of the Uniform Public Expression Protection Act (UPEPA), a model anti-SLAPP law drafted by the Uniform Law Commission, that applies to claims arising out of a person’s exercise of speech, press, assembly, petition, and association rights on matters of public concern.5 Similarly, in 2020, New York—whose anti-SLAPP law previously applied only to lawsuits involving parties seeking public permits, zoning changes, or other entitlements from a government body—expanded its law’s protections to cases involving “any lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest.”6 And in 2019, Tennessee expanded its anti-SLAPP law to protect against claims “filed in response to a party’s exercise of the right of free speech, right to petition, or right of association.”7 Previously, the statute applied only to statements made to governmental agencies.8
Legal Challenges to State Anti-SLAPP Laws
Despite—or perhaps, in some cases, because of—the significant protection these laws provide, they have often been subjected to criticism and legal challenges. For example, in 2015, the Washington Supreme Court struck down that state’s original anti-SLAPP law, finding that it violated a plaintiff’s constitutional right to a jury trial because the “clear and convincing evidence” showing required to defeat a motion to strike under the anti-SLAPP law exceeded the burden of proof required under a motion to dismiss or summary judgment standard.9 Minnesota’s anti-SLAPP law was found unconstitutional for similar reasons.10 And, in response to an analogous constitutional challenge to the interpretation of Maine’s anti-SLAPP law, the Maine Supreme Judicial Court amended its framework for deciding special motions to dismiss under that law.11 Washington’s new anti-SLAPP law avoids these problems, however, by adopting language from the UPEPA that tracks the existing summary judgment and dismissal standards, in essence permitting defendants to bring a motion for pretrial dismissal early in the proceedings, rather than after a lengthy and expensive discovery period.
SLAPPs brought in federal court pose unique challenges for defendants. There is currently no federal anti-SLAPP law. And federal courts of appeals are split as to whether—and to what extent—provisions of state anti-SLAPP laws should be applied by federal courts sitting in diversity. The analysis generally turns on whether, in accordance with the test established by the U.S. Supreme Court in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., a state’s anti-SLAPP law creates substantive rights and does not conflict with any federal rule.12 The First, Second, and Ninth Circuits have previously found both requirements to be satisfied and allowed defendants to invoke at least some state anti-SLAPP law protections in federal court.13 The Fifth, Tenth, Eleventh, and D.C. Circuits, however, have not.14 Recently, a series of cases in the Ninth and Second Circuits have raised new challenges to the application of California’s anti-SLAPP law and New York’s newly amended anti-SLAPP law in federal court.
Challenges to the Application of California’s Anti-SLAPP Law in the Ninth Circuit
California’s anti-SLAPP law was one of the nation’s first. Among other elements, it contains two key components: the special-motion-to-strike provision and the fee-shifting provision.
The special-motion-to-strike provision creates a mechanism for disposing of meritless defamation suits before trial.15 Under California law, a defendant who brings a special motion to strike must establish that (a) the plaintiff’s cause of action rests on speech or petitioning activity that was “in furtherance of” the defendant’s rights under the First Amendment or the state constitution and (b) the defendant’s speech was “in connection with a public issue.”16 If the defendant makes this showing, the burden shifts to the plaintiff, who must establish “a probability” of prevailing. If the plaintiff fails, the court must grant the motion to strike.17
The fee-shifting provision, for its part, establishes that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”18 This is the linchpin of the anti-SLAPP law’s protective character. After all, even if a SLAPP defendant prevails on a special motion to strike, the costs of doing so can be ruinous. The fee-shifting provision addresses that concern. It works in tandem with the special-motion-to-strike provision to achieve the cardinal, substantive goal of California’s anti-SLAPP law: protecting individuals and news organizations from devastatingly expensive lawsuits designed to punish them for, and deter them from, engaging in speech on matters of public importance.19
Needless to say, the motion-to-strike and fee-shifting provisions can only protect Californians’ rights if courts actually apply them. And the provisions’ application in federal courts—i.e., in district courts exercising diversity jurisdiction—has produced sharp contention in the Ninth Circuit.20
The Ninth Circuit first addressed this question in Newsham v. Lockheed Missiles & Space Company.21 There, the court held that the motion-to-strike and fee-shifting provisions of California’s anti-SLAPP law applied in federal court because neither provision produced a “direct collision” with the Federal Rules of Civil Procedure, and also because—among other things—California had “articulated . . . important, substantive state interests furthered by the Anti–SLAPP statute.”22 To arrive at that holding, the Ninth Circuit applied longstanding principles of federalism derived from Erie and its progeny.23
More than a decade later, in Shady Grove, the Supreme Court issued a fractured opinion that cast some doubt on when and how Erie and its progeny are to be applied.24 Afterward, a petition for rehearing en banc argued that Shady Grove required the Ninth Circuit to revisit Newsham and overturn its holdings.25 The court denied the petition.26 Judge Kim McLane Wardlaw, concurring in the petition’s denial, explained that Shady Grove “does not change [Newsham’s] reasoning.”27
The Ninth Circuit has since offered clarifying guidance to lower courts applying California’s anti-SLAPP law. In Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, the Ninth Circuit explained that when a district court adjudicates a motion to strike under California’s anti-SLAPP law, it must apply federal procedure, like so:
If a defendant makes an anti-SLAPP motion to strike founded on purely legal arguments, then the analysis is made under Fed. R. Civ. P. 8 and 12 standards; if it is a factual challenge, then the motion must be treated as though it were a motion for summary judgment and discovery must be permitted.28
The Ninth Circuit has repeatedly affirmed Planned Parenthood’s framework.29
Two appeals now pending before the Ninth Circuit seek to change that. The first, CoreCivic v. Candide Group, involves a private prison company’s defamation suit against a journalist and social justice advocate who published articles critical of the company’s detention of migrant families.30 The second, Planet Aid v. Reveal, involves a nonprofit’s defamation suit against a news organization based on reports that the nonprofit had misused hundreds of millions of dollars of federal grant money.31 In both cases, the defendants filed a special motion to strike under California’s anti-SLAPP law. In both cases, the district court granted the defendants’ anti-SLAPP motion. And in both cases, the plaintiff or an amicus supporting the plaintiff has asked the Ninth Circuit to hold that California’s anti-SLAPP law does not apply in federal court, notwithstanding the Ninth Circuit’s repeated reaffirmance of the Planned Parenthood framework.32
Between the two appeals, the only component of California’s anti-SLAPP law currently at issue is the special-motion-to-strike provision. And under Planned Parenthood, defendants are no likelier to win a special motion to strike than they are to win a motion to dismiss or a motion for summary judgment under the federal rules. The state and federal standards are identical; removing the special-motion-to-strike provision from federal courts would therefore have no effect on plaintiffs’ or defendants’ chances of prevailing.
Such a holding could, however, dramatically affect litigation over attorney fees. Recall that, as written, California’s anti-SLAPP statute gives defendants the right to recover attorney fees when they prevail on a special motion to strike.33 If the Ninth Circuit were to hold that the motion-to-strike provision of California’s anti-SLAPP law doesn’t apply in federal court, it would provide defamation plaintiffs with a roadmap for arguing that even when defendants prevail on a motion to dismiss or motion for summary judgment under the federal rules, they can’t recover under the fee-shifting provision.34
That result would eviscerate one of the core substantive rights that California sought to create when it passed its anti-SLAPP law: the ability to recover the potentially astronomical costs of defending a defamation claim. In the same stroke, it would provide a powerful incentive for plaintiffs to bring defamation claims in federal rather than state courts. Both outcomes would, of course, undermine “the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.”35
As the Reporters Committee for Freedom of the Press and a media coalition have argued,36 there’s no compelling reason for the Ninth Circuit to revisit its holding in Planned Parenthood. The framework established in that opinion is entirely consistent with what Shady Grove requires: that federal courts apply federal procedural rules in diversity cases. Indeed, Planned Parenthood elegantly balances federal courts’ obligation to apply federal procedural rules with their coexistent obligation to respect substantive rights created by state law. It’s a model that other circuits would do well to emulate.
Challenges to the Application of New York’s Anti-SLAPP Law in the Second Circuit
In the Second Circuit, a case decided under New York’s newly amended anti-SLAPP law is facing its first federal appellate review in Coleman v. Grand, a case involving application of the law’s actual malice fault standard to private figure plaintiffs. The action concerns a letter sent by aspiring jazz musician Grand to friends and colleagues in the jazz industry concerning her relationship with fellow musician Coleman.37 Coleman sued Grand for defamation in the Eastern District of New York for statements made in the letter and in an email Grand sent to friends asking for assistance in proofreading the letter.38 Despite Coleman’s prominence in the jazz industry, the district court found him to be a private figure.39
Prior to the scheduled hearing on the parties’ respective cross-motions for summary judgment under Fed. R. Civ. P. 56, New York expanded its anti-SLAPP law to include any “lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of ‘public interest.’”40 The amended law provides that to recover damages in a defamation action, a plaintiff must establish by clear and convincing evidence that the defendant acted with actual malice, regardless of whether the plaintiff is a public or private figure.41 Finding the amendments to be remedial, the district court applied them retroactively.42 The court then granted summary judgment to Grand, in part, on the grounds that Coleman failed to show by clear and convincing evidence that Grand acted with actual malice.43
On appeal, Coleman argues, inter alia, that the pretrial dismissal provisions of New York’s anti-SLAPP law should not apply in federal court and that the district court therefore erred in applying the law’s actual malice fault standard.44 But, as the Reporters Committee and a media coalition have argued,45 whether the actual malice fault standard applies in federal court is separate from whether the pretrial dismissal provisions apply. When asked to review the applicability of certain provisions of Nevada’s anti-SLAPP law in Adelson v. Harris, for example, the Second Circuit did not consider the applicability of the anti-SLAPP law as a whole, but rather focused on “the specific state anti-SLAPP provisions applied by the district court” in that case.46 In doing so, it found two of the provisions—the civil immunity provision and the fee-shifting provision—to be “unproblematic,” as each was substantive under Erie and did not conflict with any federal rule.47
The same conclusion follows here. The actual malice fault standard of New York’s anti-SLAPP law does not conflict with any federal rules—indeed, no federal rule addresses the applicable standard of fault for establishing liability in civil matters, whether in the context of a claim for defamation or otherwise. And, in amending its anti-SLAPP law to set a higher standard of fault for defamation claims involving private individuals—shifting from the prior “gross negligence” standard48 to actual malice—the New York legislature sought to protect an important substantive interest: the exercise of free speech about matters of public concern.49
Moreover, unlike the fee-shifting provision of California’s anti-SLAPP law that was at issue in the Second Circuit’s decision in La Liberte v. Reid,50 nothing in the text of New York’s anti-SLAPP law suggests that application of the actual malice fault standard is linked to the law’s pretrial dismissal provisions. Indeed, the New York legislature made this distinction clear, laying out the actual malice fault standard under Chapter Six of New York’s Consolidated Laws, which concern substantive Civil Rights Law,51 while setting forth the pretrial dismissal provisions under Chapter Eight, which concerns Civil Practice Law and Rules.52
Over a century of Supreme Court precedent has articulated the general rule for federal courts sitting in diversity: Apply state substantive law and federal procedural law.53 The actual malice fault standard of New York’s anti-SLAPP law is substantive state law and should apply in federal court. To hold otherwise would conflict with both Adelson and La Liberte54 and would undermine the very objectives the New York legislature sought to remedy in amending its anti-SLAPP law.55
Conclusion
The news media—and those who share their stories with the news media—have faced an onslaught of retaliatory and meritless litigation in recent years.56 In the absence of a federal anti-SLAPP law, journalists and sources alike rely on the protections provided by robust state anti-SLAPP laws. The passage of the UPEPA by the Uniform Law Commission and the amendments to many state anti-SLAPP laws that expand their scope reflect an encouraging trend in the direction of strengthening protections for the exercise of First Amendment rights. But as more SLAPPs are filed in federal court under diversity jurisdiction, the application of the substantive provisions of state anti-SLAPP laws in federal court is of paramount importance. The pending decisions in the Second and Ninth Circuits—courts having jurisdiction over states with arguably the largest number of news media organizations—will significantly impact the news media’s ability to defend against meritless federal lawsuits in the future.
Endnotes
1. Austin Vining & Sarah Matthews, Introduction to Anti-SLAPP Laws, Reporters Comm. for Freedom of the Press, https://perma.cc/9VWJ-4SXC.
2. Id.
3. Some state laws, for example, protect only against speech made in connection with petitioning the government or testimony submitted to a government body. See, e.g., Haw. Rev. Stat. Ann. § 634F-1 (2019).
4. Vining & Matthews, supra note 1.
5. Uniform Public Expression Protection Act, sec. 11, https://perma.cc/CR6Q-PWP3.
6. N.Y. Civ. Rights Law § 76-a(1)(a)(1)–(2) (McKinney); see also Vining & Matthews, supra note 1.
7. Tenn. Code Ann. § 20-17-104(a).
8. Id. § 4-21-1003(a).
9. Davis v. Cox, 351 P.3d 862, 864 (Wash. 2015), abrogated on other grounds by Maytown Sand & Gravel, LLC v. Thurston Cnty., 423 P.3d 223 (Wash. 2018).
10. See Mobile Diagnostic Imaging, Inc. v. Hooten, 889 N.W.2d 27, 35 (Minn. Ct. App. 2016).
11. Thurlow v. Nelson, No. Cum-20-63, 2021 WL 5457537, at *5–6 (Me. Nov. 23, 2021). The statutory language of Maine’s anti-SLAPP law is silent with respect to the applicable burden of proof for a nonmoving party defending against a special motion to dismiss under the anti-SLAPP law. See Me. Rev. Stat. Ann. tit. 14, § 556. However, in Gaudette v. Davis, 160 A.3d 1190 (Me. 2017), the Maine Supreme Judicial Court established a three-step framework for deciding a special motion to dismiss. Under the third step of Gaudette, on motion by either party, the court could undertake “a brief period of limited discovery” followed by an evidentiary hearing where the nonmoving party would be required to “establish, by a preponderance of the evidence, each of the elements for opposing the dismissal on anti-SLAPP grounds for which [it] successfully made out [its] prima facie case” in step two of the framework. Id. at 1198–99. If neither party made such a motion, the court was to determine whether the nonmoving party had met its burden “by a preponderance of the evidence” based on “the parties’ submissions in seeking and opposing the special motion to dismiss.” Id. Finding that this third fact-finding step “could implicate a citizen’s right to a jury trial under article I, section 20 of the Maine Constitution,” 2021 WL 5457537, at *5, the court in Thurlow “abandon[ed] the third step [it] adopted in Gaudette,” thus permitting a nonmoving party to defeat a special motion to dismiss if the nonmoving party can “establish, through the pleadings and affidavits,” prima facie evidence that the moving party’s petitioning activity was devoid of any reasonable factual support or any arguable basis in law and that the moving party’s petitioning activity caused actual injury to the nonmoving party. Id. at *6.
12. 559 U.S. 393, 398 (2010). As a general rule, federal courts sitting in diversity engage in a two-step analysis, in sequence, to determine whether to apply a state law. First, courts ask whether a Federal Rule of Civil Procedure “answers the question in dispute.” Id. If so, the federal rule governs, so long as it does not violate the Rules Enabling Act. Id. Second, if no Federal Rule answers the question in dispute, the federal court must determine whether the state law is substantive within the meaning of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1838). Id. In doing so, it asks whether the state statute seeks to protect important substantive interests. In making that determination, the court looks to the “twin aims” of Erie in determining whether a state law is substantive: “the discouragement of forum shopping and the avoidance of the inequitable administration of the laws.” Hannah v. Plumer, 380 U.S. 460, 468 (1965).
13. See, e.g., Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014) (finding application of certain Nevada anti-SLAPP provisions in federal court “unproblematic”); Godin v. Schencks, 629 F.3d 79, 81 (1st Cir. 2010) (finding that Maine’s anti-SLAPP law applied in federal court); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999) (applying certain provisions of the California anti-SLAPP law in federal court).
14. See, e.g., Klocke v. Watson, 936 F.3d 240, 245 (5th Cir. 2019), as revised (Aug. 29, 2019) (finding that Texas anti-SLAPP law’s burden-shifting framework could not apply in federal court because it imposed additional requirements beyond those found in the Federal Rules of Civil Procedure); Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1351 (11th Cir. 2018) (finding that motion-to-strike procedure in Georgia anti-SLAPP law conflicted with federal rules and could not apply in federal court); Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 662 (10th Cir. 2018), cert. denied, 139 S. Ct. 591 (2018) (finding that New Mexico’s anti-SLAPP law does not apply in federal court); Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1332 (D.C. Cir. 2015) (finding that D.C. anti-SLAPP law does not apply in federal court).
15. Cal. Civ. Proc. Code § 425.16(b)(1).
16. Id.
17. Critically, under California law, a state court’s denial of a special motion to strike is immediately appealable. Cal. Civ. Proc. Code §§ 425.16(i), 904.1(13). The Ninth Circuit has held that the same applies to a federal district court’s denial of a special motion to strike. Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003), partially superseded by statute on other grounds as stated in Breazeale v. Victim Servs., Inc., 878 F.3d 759, 766–67 (9th Cir. 2017). As the Ninth Circuit put it, “if the defendant were required to wait until final judgment to appeal the denial of a meritorious anti-SLAPP motion,” then the appeal wouldn’t do much good: Getting a reversal “would not remedy the fact that the defendant had been compelled to defend against a meritless claim brought to chill rights of free expression.” Batzel, 333 F.3d at 1025.
18. Cal. Civ. Proc. Code § 425.16(c)(1).
19. See id. § 425.16(a) (“The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.”).
20. See Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 833 (9th Cir.), amended, 897 F.3d 1224 (9th Cir. 2018) (“The degree to which the anti-SLAPP provisions are consistent with the Federal Rules of Civil Procedure has been hotly disputed.”).
21. 190 F.3d 963, 972 (9th Cir. 1999).
22. Id.
23. See id. at 973 (concluding that “the twin purposes of the Erie rule—‘discouragement of forum-shopping and avoidance of inequitable administration of the law’—favor application of California’s Anti–SLAPP statute in federal cases” (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965))).
24. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398–406 (2010) (five-justice majority); id. at 406–10 (four-justice plurality); id. at 410–15 (three-justice plurality); id. at 415–16 (four-justice plurality); id. at 416–36 (Stevens, J., concurring) (joining the majority opinion and concurring in the result but otherwise agreeing with the dissent); id. at 436–59 (Ginsburg, J., dissenting) (four-justice dissent).
25. Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1181 (9th Cir. 2013).
26. Id.
27. Id.
28. 890 F.3d 828, 833–34 (9th Cir.), amended, 897 F.3d 1224 (9th Cir. 2018) (quoting Z.F. v. Ripon Unified Sch. Dist., 482 F. App’x 239, 240 (9th Cir. 2012)).
29. See, e.g., Herring Networks, Inc. v. Maddow, 8 F.4th 1148, 1156 (9th Cir. 2021); RLI Ins. Co. v. Langan Eng’g, Env’t, Surveying & Landscape Architecture, D.P.C., 834 F. App’x 362, 363 (9th Cir. 2021); Drexler v. Billet, 784 F. App’x 548, 549 (9th Cir. 2019).
30. See generally CoreCivic, Inc. v. Candide Group, LLC, No. 20-17285 (9th Cir.). The Reporters Committee for Freedom of the Press, joined by 33 news media organizations, filed a brief of amici curiae in support of Defendants-Appellees. Id., ECF No. 48.
31. See generally Planet Aid, Inc. v. Reveal, No. 21-15690 (9th Cir.). The Reporters Committee for Freedom of the Press, together with attorneys at Gibson Dunn and joined by 32 news media organizations, filed a brief of amici curiae in support of Defendants-Appellees. Id., ECF No. 38.
32. See generally Principal Brief of Plaintiff-Appellant CoreCivic, Inc., CoreCivic, Inc. v. Candide Group, LLC, No. 20-17285 (9th Cir. Aug. 16, 2021), ECF No. 25; Brief of Clare Locke LLP as Amicus Curiae in Support of Appellants and Reversal, Planet Aid, Inc. v. Reveal, No. 21-15690, ECF No. 23.
33. Supra note 17.
34. See, e.g., La Liberte v. Reid, 966 F.3d 79, 88–89 (2d Cir. 2020).
35. Hanna v. Plumer, 380 U.S. 460, 468 (1965).
36. Brief of Amici Curiae the Reporters Committee for Freedom of the Press and 33 Media Organizations in Support of Appellees Seeking Affirmance at 16–20, CoreCivic, Inc. v. Candide Group, LLC, No. 20-17285 (9th Cir. Oct. 26, 2021), ECF No. 48; Brief of Amici Curiae the Reporters Committee for Freedom of the Press and 32 Media Organizations in Support of Appellees Seeking Affirmance at 9–13, Planet Aid, Inc. v. Reveal, No. 21-15690 (9th Cir. Nov. 3, 2021), ECF No. 38.
37. Coleman v. Grand, 523 F. Supp. 3d 244, 251–52 (E.D.N.Y. 2021).
38. Id.
39. Id. at 257.
40. N.Y. Civ. Rights Law § 76-a(1)(a)(2).
41. Id.
42. Coleman, 523 F. Supp. 3d at 258; see also Palin v. N.Y. Times Co., 510 F. Supp. 3d 21, 26 (S.D.N.Y. 2020) (holding that the amendments to New York’s anti-SLAPP law apply retroactively, as “remedial legislation . . . should be given retroactive effect in order to effectuate its beneficial purpose” (collecting cases)).
43. Coleman, 523 F. Supp. 3d at 261. The court also found that Grand’s statements were protected opinion and, thus, not actionable in defamation. Id. at 264.
44. Opening Brief of Plaintiff-Appellant Steven Douglas Coleman at 17–22, Coleman v. Grand, No. 21-800 (2d Cir. July 7, 2021), ECF No. 48.
45. Brief of Amici Curiae the Reporters Committee for Freedom of the Press and 30 Media Organizations in Support of Defendant-Appellee Seeking Affirmance at 10–13, Coleman v. Grand, No. 21-800 (2d Cir. Oct. 13, 2021), ECF No. 88.
46. 774 F.3d 803, 809 (2d Cir. 2014).
47. Id. The court declined to address the applicability in federal court of a third provision of the Nevada anti-SLAPP law, staying discovery upon the filing of an anti-SLAPP motion.
48. See Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199 (1975).
49. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (“[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher . . . of defamatory falsehood injurious to a private individual.”).
50. 966 F.3d 79, 88–89 (2d Cir. 2020). In La Liberte, the court interpreted California’s anti-SLAPP law as providing for an award of attorney fees only to defendants who prevail on a special motion to strike under that law. For that reason, the court held that its decision that the motion-to-strike provision of California’s law was inapplicable in federal court was also fatal to the applicability of the law’s fee-shifting provision.
51. See N.Y. Civ. Rights Law § 76-a(1)(a)(2).
52. See N.Y. C.P.L.R. 3211(g), 3212(h) (McKinney).
53. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1838); see also Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996).
54. See La Liberte, 966 F.3d at 86 n.3 (“[E]ven if the procedural elements of certain Anti–SLAPP statutes present [conflicts with the Federal Rules], those problems [are] not presented . . . where the effects of the Anti–SLAPP law . . . are substantive.”) (quoting Adelson v. Harris, 973 F. Supp. 2d 467, 493 n.21 (S.D.N.Y. 2013)) (emphasis in original).
55. See S52A Sponsor Mem., N.Y. State Senate (July 22, 2020), https://perma.cc/2KD2-GKAU (explaining that the original anti-SLAPP law “as drafted, and as narrowly interpreted by the courts” had “failed to accomplish [its] objective” of protecting free speech on matters of public interest).
56. See, e.g., SLAPPed but Not Silenced: Defending Human Rights in the Face of Legal Risks, Bus. & Hum. Rts. Res. Ctr. (June 2021), https://bit.ly/3uSNdmV (recognizing United States as among the countries “with the highest number of SLAPPs,” following Thailand, Honduras, and Peru); Ed. Bd., New York’s Chance to Combat Frivolous Lawsuits, N.Y. Times (Nov. 4, 2020), https://nyti.ms/3uSgPAZ (describing SLAPPs and noting that they have become “pervasive”); Jonathan Peters & Jared Schroeder, Here’s How to Stop Thin-Skinned Bullies Suing the Media Constantly, Colum. Journalism Rev. (Apr. 29, 2019), https://bit.ly/3Bpl8Gi (describing SLAPPs); Understanding Anti-SLAPP Laws, Reporters Comm. for Freedom of the Press, https://www.rcfp.org/resources/anti-slapp-laws (collecting stories of SLAPPs).