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What Is a SLAPP?

SLAPP stands for “Strategic Lawsuit Against Public Participation.” The name arose in the early 1990s, in response to a trend that many people found very disturbing. Large corporations, or individuals with a lot of power and money, would sue their critics for defamation, even though it would be quite obvious that they have little chance of winning, because their critics were speaking about matters of public concern.

The plaintiffs in these cases, however, were not really concerned with winning these lawsuits. Rather, they just wanted to bury the defendant in litigation they cannot possibly afford to defend, in order to force them into a settlement, which often required them to retract their criticisms. These strategic lawsuits must have no substantial basis in law and the plaintiff's real goal is to silence the speaker by scaring them with litigation. SLAPP actions are often brought against journalists, media and entertainment companies, activists, and others that criticize a plaintiff regarding an issue of public interest.

How Are Speakers Protected Against SLAPPs?

Obviously, the fact that deep-pocketed entities were using the courts to stifle the free-speech rights of their critics was cause for significant concern. For that reason, several states have passed laws designed to protect individuals and non-profit organizations from these lawsuits.
In November 2020, New York expanded its free speech protections through a new anti-SLAPP law.  The statute seeks to deter targeted lawsuits against parties who speak out on an issue of public interest when the purpose of the suit is to discourage individuals from exercising their First Amendment rights.  Both sides should pay careful attention to the law since it gives defendants broader grounds to seek dismissal of a case and recover attorney's fees, which can be costly to plaintiffs.

The new anti-SLAPP law applies to the following types of claims:

  • any communications in a public place open to the public or a public forum in connection with an issue of public interest; or
    any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition
  • Significantly, the term “public interest” is construed broadly and means “any subject other than a purely private matter.”  Whether the relevant speech is an issue of public interest or not is fact specific.  For example, a federal court interpreting this new law ruled that an email and letter addressing “sexual impropriety and power dynamics in the music industry” was an issue of public interest because the communications were sent in November of 2017 against the backdrop of the #MeToo movement
Anti-SLAPP statutes protect free speech by discouraging plaintiffs from filing baseless lawsuits.  New York's anti-SLAPP law allows defendants to challenge the basis of the suit, obtain a relatively quick dismissal, and seek recovery of attorney's fees and other costs of action if the lawsuit is determined to be a strategic lawsuit against public participation.
These laws, known as “Anti-SLAPP Laws”, allow defendants in these lawsuits to have the cases dismissed very early in the proceedings, and to recover attorney's fees, through what's known as an Anti-SLAPP motion. In order to prevail on such a motion, the defendant has to show that the statement the plaintiff is suing over concerns a “public issue.” This can be virtually any topic that might be of concern to the public. Once this is established, the burden shifts to the plaintiff to show that it is likely to win its lawsuit on the merits, usually through a showing that the statements it complains of are clearly untrue, and made with knowledge of that fact.
If the plaintiff cannot show that it is likely to win on the merits, the lawsuit is dismissed, and the defendant is usually awarded their attorney's fees and costs they incurred in defending the suit. However, if the plaintiff shows that they are likely to win on the merits, the lawsuit is allowed to proceed. However, the fact that the court earlier determined that they were likely to win on the merits cannot be used in any way when the jury has to decide the merits of the case. A plaintiff who successfully defeats an Anti-SLAPP motion usually can't collect attorney's fees unless they can show that the motion was frivolous.
Approximately half of the states in the U.S. have Anti-SLAPP laws. They vary widely in the degree of protection they provide, but the laws of California and Oregon are generally seen as being the most protective of speakers.


If the person or entity being sued (a defendant) believes that the lawsuit brought against them is a SLAPP lawsuit, they may file a motion to dismiss the action.  In support of an anti-SLAPP motion to dismiss the action, the defendant must provide proof that the claim relates to the defendant's exercise of their free speech rights “on a matter of public interest.”  Defendants can submit documentary evidence and sworn statements in support of their motion, allowing them to obtain an early dismissal of the lawsuit.

Once the defendant provides evidence that the anti-SLAPP law applies, the burden of proof shifts to the plaintiff.  If the plaintiff then cannot show that the claim has a “substantial basis in law” or is supported by a “substantial argument” to modify existing law, the suit will be dismissed.  “Substantial basis” is not defined in the statute.    

While the motion is being decided by the court, the discovery process of the case is on hold.  The discovery process often includes the collection and exchange of documents, testimony, and other evidence between the parties.  The purpose of the discovery hold is to avoid the burdensome and expensive discovery process, while the court determines whether to dismiss the action.



If the plaintiff fails to meet its burden of proof to show that the claim has a substantial basis in law, the action will be dismissed.  Further, the plaintiff must also pay the defendant's attorney's fees and other litigation costs.  This is a change from the prior law, where the court was not required to award legal fees to a successful defendant.  Now, it is mandatory.

Additionally, defendants may be entitled to “other compensatory damages” if they can show that the plaintiff brought the case to harass, intimidate, punish, or maliciously inhibit free speech, petition, or association rights.  Compensatory damages compensate the defendant for any other harm they suffered.  Punitive damages also may be available where the plaintiff brought the case “for the sole purpose” of harassing, intimidating, punishing, or maliciously inhibiting free speech, petition, or association rights.

Can a Lawyer Help?

Plaintiffs considering defamation actions must be careful to not run afoul of the new anti-SLAPP law.  Even if they are defamed, the risk of having a suit challenged on the basis of being one against public participation can cause them to both lose the case and pay their adversaries' attorneys' fees and costs. From defendants' perspective, they now have a useful tool to challenge these actions and protect their free speech rights, but they must present a strong case.

If you are being sued for defamation, and believe that your speech is protected by the First Amendment to the U.S. Constitution, or the equivalent free speech protection in your state constitution, a government attorney specializing in libel or slander defense, or free speech law, will be able to advise you about the protections provided by the laws of your state, and will be able to file an Anti-SLAPP motion, giving you a good chance of getting the lawsuit dismissed.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.