NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9005
SPONSOR: Steck TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to creating the anti-SLAPP act
PURPOSE::
Creates the anti-SLAPP act,
SUMMARY OF PROVISIONS::
Section 1: Entitles the act the "anti-SLAPP Act"
Section 2: Amends subdivisions (c) and (g) of section 3211 of the civil
practice law and rules. Subdivision (c) as amended by the judicial
conference proposal number 4 for the year 1973 is amended to provide a
new cross-reference to subdivision (g).
Subdivision (g) is amended to include a provision requiring that discov-
ery be stayed pending a decision on the motion and that the court shall
set a hearing date no later than 60 days after the date of service of
the motion unless docket conditions require a later hearing, but there
hearing shall not occur more than ninety days after service of the
motion. Additionally subdivision (g) requires that if a motion to
dismiss is granted the court shall provide for the imposition of costs,
sanctions and reasonably attorney's fees:
Section 3: Establishes the effective date.
JUSTIFICATION:
Strategic Lawsuits against Public Participation, also known as SLAPP
suits, are suits brought purposefully to restrict free speech, and ordi-
narily arise out of defamation lawsuits. The primary difference between
a generic defamation suit and a SLAPP suit is the plaintiff in a SLAPP
suit is generally uninterested in winning their lawsuit, as opposed to
making the exercise of free speech prohibitively expensive, thereby
creating a "chilling effect" against public expression of ideas and
values.
Consequently, SLAPP suits are most often seen being lodged against indi-
viduals or small underfunded groups whose lack of resources hamper them
from affording legal counsel, which would be necessary for them to
prevail in.the "defamation" suit. The goal of such expensive litigation
is to intimidate, censor, disparage, burden or otherwise punish activ-
ists for exercising their constitutional right to free speech and
protest.
As of 2012, twenty-eight (28) states have established anti-slapp legis-
lation. It is imperative that New York State continue the policy of
protecting the rights of citizens by strengthening its existing
anti-SLAPP laws by making it more difficult to use the court as a tool
for silencing public speech. Strengthening New York's existing
anti-SLAPP laws would protect New Yorkers against those that would
infringe on free speech rights, and would further strengthen the vigor-
ous debate of ideas that characterizes New York's political culture.
In a 1992 decision where a real estate developer sued a not-for-profit
group, New York State Supreme Court Judge Nicholas Colabella Jr., stated
in reference to SLAPP lawsuits: "Short of a gun to the head, a greater
threat to First Amendment expression can scarcely be imagined." Gordon
v. Marrone, 155 Misc. 2d 726, 736. Similarly, in another 1992 decision
when a local block association was sued by a developer for providing its
opinion in a zoning case, the Court found that a lawsuit "impermissibly
assailed an exercise of the defendant's constitutional right to petition
government for a redress of grievances." In the Matter of Entertainment
Partners Group, Inc. v. Davis, 590 N.Y.S.2d 979 (1992).
At least in part because of those two cases in 1992, the New York State
legislature declared that it was a policy of the state that the rights
of citizens to participate freely in the public process be safeguarded.
The legislature subsequently passed sections 70-a and 76-a of the Civil
Rights Law (CRL), and sections 3211(g) and 3212(b) of the Civil Practice
Law and Rules (CPLR) to create New York's first anti-SLAPP laws.
New York's anti-SLAPP law stops short of protecting all constitutional
speech however, and.is limited to protecting individuals against
entities/individual seeking permits or making other applications to
government bodies. Thus where a defendant is or was sued because of
their reporting, commenting, ruling upon, challenging or opposing an
application permit, New York's law protects them. There are a number of
issues with New York's existing laws however. First, New York's
anti-SLAPP protections do not halt discovery which one is trying to
dismiss the suit. Thus, defendants can spend cripplingly large amounts
of money despite prevailing on the underlying frivolous lawsuit. Second,
the imposition of anti-SLAPP damages and/or costs and fees is not manda-
tory and courts can choose not to punish the frivolous plaintiff for
bringing a suit restricting crucial 1st Amendment speech.
This bill will redress those two failings in New York's existing law and
begin a conversation about re-energizing New Yorkers' right to free
speech where government action is concerned.
LEGISLATIVE HISTORY::
None. This is new legislation.
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE::
This act shall take effect immediately.
