Journal of Free Speech Law: "The Application of the New York Anti-SLAPP Scheme in Federal Court,"

by Matthew L. Schafer & Tanvi Valsangikar, just published, through our normal blind review process.

The article is here; here is the Abstract:

In 2020, the New York Legislature broadly expanded the State's original 1992 anti-SLAPP scheme that had been meant to discourage strategic lawsuits against public participation (SLAPPs). Judicial reception of the 2020 amendments has been mixed. Notably, despite federal courts' uniformity in applying the 1992 law in federal court, several federal courts have now declined to apply the amended law. Their failure to do so takes on pressing importance in the face of proliferating, politically motivated defamation lawsuits and of calls to overrule New York Times v. Sullivan that, if successful, will leave anti-SLAPP laws as the strongest defense against retaliatory, speech-based lawsuits.

This Article argues, contrary to this recent trend, that most of New York's amended anti-SLAPP scheme applies in federal court. The law's provisions providing a cause of action for damages and modifying the elements of a SLAPP plaintiff's claims apply in federal court as they are quintessentially substantive state laws. The law's seemingly procedural provisions may well apply too, depending on how courts read Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. Throughout, this Article identifies courts' recent analytical errors and explains how they are irreconcilable with the text and structure of the anti-SLAPP scheme. While it focuses on New York's law, this Article provides a guide for any litigant or judge in federal cases implicating anti-SLAPP laws.

Matthew L. Schafer is an adjunct professor at Fordham University School of Law; Tanvi Valsangikar is a media lawyer at Springer Nature.

Comments

[ReaderY]

Why not have a more general article about whether (and to what extent) state anti-SLAPP statutes apply in federal court, rather than an article about New York’s law specifically?

[Michael P]

I expect that the Journal of Free Speech Law would be happy to consider such an article if someone spends the time to write it.

[Eugene Volokh]

Of course, and if it says new things. One complication is that many circuits have concluded that the details of each statute are important in deciding whether it can be applied in federal court -- or even which portions of it can be applied in federal court. There have been articles written about the big picture, and they are valuable. But articles about the details of a particular statute (especially one in a large state that gets a lot of media litigation) are valuable, too.

[Matthew Schafer]

Apologies for a late response, but here's what we say in the article about this critique:

Consistent with this Article’s title, we focus on the application of the New York anti-SLAPP in federal court. We do so for a few reasons. Initially, as the media capital of the United States, the application of the anti-SLAPP law in New York has national relevance beyond that of other states. Next, articles that focus on the general applicability of “anti-SLAPPs” in federal court may do more to confuse than clarify, because the application of a particular anti-SLAPP necessarily turns on the text and structure of the specific anti-SLAPP at issue. Finally, while generic inquiries into the applicability of anti-SLAPP laws in federal court risk confusion, a step-by-step analysis of a specific law can provide an analytical blueprint for analyzing the applicability of other such laws.

[Dilan Esper]

Huge split in the circuits on this; SCOTUS seems to have no interest in taking it up. I assume probably because of the factors Justice Kavanaugh recently discussed; they don't want to take up a question when they don't know what the answer is going to be.