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

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.

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