The Volokh Conspiracy

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Free Speech

N.Y. Anti-SLAPP Statute Not Retroactive

So a N.Y. appellate court held yesterday.


The New York Legislature strengthened its "anti-SLAPP" statute in 2020, among other things by requiring even private figure plaintiffs to show "actual malice" in public-concern libel cases. This raised the question whether the statute retroactively applied to all pending lawsuits, including ones based on pre-2020 speech. Several federal district court decisions, including in Palin v. N.Y. Times Co., answered it, "yes, retroactive."

But now the New York intermediate appellate court has said the law is not retroactive in this respect. From yesterday's decision in Gottwald v. Sebert (the Dr. Luke v. Ke$ha case):

Contrary to the decision of the motion court and in other nonbinding decisions (see e.g. Palin v New York Times Co., 510 F Supp 3d 21 [SD NY 2020]), there is insufficient evidence supporting the conclusion that the legislature intended its 2020 amendments to the anti-strategic lawsuit against public participation (anti-SLAPP) law to apply retroactively to pending claims such as the defamation claims asserted by plaintiffs in this action.

The Court of Appeals [i.e., New York's highest court] has stated, in general terms, that "ameliorative or remedial legislation" should be given "retroactive effect in order to effectuate its beneficial purpose," and this Court, in limited circumstances, has found the requisite legislative intent to apply a statute retroactively based on the remedial nature of the statute. Nevertheless, in [a 2020 decision], the Court of Appeals noted that the United States Supreme Court had previously limited "the continued utility of the tenet that new 'remedial' statutes apply presumptively to pending cases," and it has otherwise noted that "[c]lassifying a statute as remedial does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to supply some defect or abridge some superfluity in the former law."

In addition, where, as here, the fact that the legislature has provided that amendments shall "take effect immediately," even though that may evince a "sense of urgency," the meaning of that phrase is, at best, "equivocal" in an analysis of retroactivity.

In light of the above principles and the factual evidence that the amendments to New York's anti-SLAPP law were intended to better advance the purposes of the legislation by correcting the narrow scope of the prior anti-SLAPP law, we find that the presumption of prospective application of the amendments has not been defeated. The legislature acted to broaden the scope of the law almost 30 years after the law was originally enacted, purportedly to advance an underlying remedial purpose that was not adequately addressed in the original legislative language.

The legislature did not specify that the new legislation was to be applied retroactively. The fact that the amended statute is remedial, and that the legislature provided that the amendments shall take effect immediately, does not support the conclusion that the legislature intended retroactive application of the amendments.

This will be practically importantly in some pending New York cases. And it might be relevant in Palin, if Palin loses at the Second Circuit (which will apply the "actual malice" test as a matter of First Amendment law in any event, relying on N.Y. Times v. Sullivan) and then asks the Supreme Court to review the case and to reconsider the N.Y. Times v. Sullivan precedent. Before yesterday's New York state court decision, the question whether to reconsider Sullivan would have been moot, precisely because actual malice would have been the legal test in any event under New York law. Now the matter would be more complicated, because reconsidering Sullivan would indeed potentially make a difference in Palin.

I still think the chances of the Court granting review in Palin are very low, but they're not as low as they seemed before yesterday's decision. (Of course, if Sebert's lawyers seek review by New York's high court, and the court agrees to hear the case, then perhaps the anti-SLAPP statute will come to be viewed as retroactive once again. The question whether New York law is retroactive is ultimately a matter for the state's high court, though absent that federal courts usually accept the view of the intermediate appellate court.)

Note: I've filed a pro bono amicus brief for various media organizations as to a different facet of the Gottwald v. Sebert question.