N.Y. Anti-SLAPP Statute Not Retroactive

In 2020, the New York Legislature strengthened their “anti-SLAPP” statute. This included requiring private-figure plaintiffs to prove “actual malice in public-concern libel suits. The question arose as to whether retroactive application of the statute was possible for all lawsuits pending, even those based upon pre-2020 speech. Several federal district court decisions, including in Palin v. N.Y. Times Co.It was answered by a spokesman, “Yes, retroactive.”

However, the New York interim appellate court has now affirmed that this law does not apply retroactively. The decision was made yesterday. Gottwald v. Sebert (The Dr. Luke V. Ke$ha Case)

Contrary to any decision by the motion court or in non-binding ordersSee 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.

Court of Appeals [i.e., New York’s highest court]In general, the Court stated that any “ameliorative” or “remedial legislation should have “retroactive effects in order to achieve its beneficial purposes.” This Court has, however, only found the necessary legislative intent to retroactively apply a statute based on the remedial character of the statute. However, [a 2020 decision]The Court of Appeals stated that the United States Supreme Court has previously restricted “the continued utility of a tenet that new remedial’ statutes apply presumptively for pending cases,” but it also noted that, “[c]The strong presumption that a statute is likely to prove beneficial does not disappear if it’s lassified as a remedial.

Additionally, in cases like this, where the legislature provides that amendments “take effect immediately”, even though it may seem urgent, that meaning is at best “equivocal” when it comes to retroactivity.

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We conclude that there is no presumption that future application of amendments to New York’s anti-SLAPP laws has been challenged based on the facts and above principles. The legislature acted to broaden the scope of the law almost 30 years after the law was originally enacted, purportedly to advance an underlying remedial purpose that was not adequately addressed in the original legislative language.

It was not stated by the legislature that retroactive application of new legislation would be allowed. The fact that this amended statute is corrective and that it shall immediately take effect, doesn’t support the assertion that the legislature meant retroactively to apply the amendments.

It will prove to be very important in certain New York case. This could also apply in PalinIf Palin loses to the Second Circuit (which applies the “actual Malice” test in all cases under First Amendment law), Palin can rely on N.Y. Times v. Sullivan2) and asks for the Supreme Court’s review of the case in order to reconsider. N.Y. Times v. Sullivan precedent. The question of whether to reconsider was not answered by yesterday’s New York court ruling. Sullivan Because actual malice under New York law would have been the legal test, it would have been ineffective. The matter is complicated because of reconsidering Sullivan This could be a significant step in making a positive difference. Palin.

The chances of the Court giving review are still high, I believe. Palin Although they are quite low, they are not as low today as yesterday. If Sebert’s attorneys request review by New York’s highest court and that court accepts the case, the anti-SLAPP statute may be deemed retroactive again. Although the question of whether New York law retroactively applies to New York is ultimately up to the state’s highest court. However, federal courts are more likely than not accept the position taken by the intermediate appellate.

Notice: As a Pro Bono Amicus Brief for several media organisations, I have filed an amicus brief to cover a different aspect of the matter. Gottwald v. Sebert question.