Requires awarding of costs and attorney fees in frivolous action involving public petition and participation

1 Co-sponsor

• Liz Krueger

BILL NUMBER:S1638

Title of bill

An act to amend the civil rights law, in relation to actions involving public petition and participation

Purpose of bill

The purpose of this bill is to extend the protection of New York's current law regarding Strategic Lawsuits Against Public Participation ("SLAPP suits"). The amendment will protect citizens' from frivolous litigation that is intended to silence their exercise of the rights of free speech and petition about matters of public concern.

Summary of provisions of bill

Section 1 of the bill would amend section 76-a of the Civil Rights Law to define an "action involving public petition and participation" to include a claim related to:

i. Any communication in a place open to the public or a public forum in connection with an issue of public concern; or

ii.Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition.

Section 2 of the bill would amend section 70-a of the Civil Rights Laws to provide that costs and attorney's fees "shall be recovered upon a demonstration that a SLAP? suit was commenced or continued without a substantial basis in fact or law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law."

Justification

Section 76-a of the Civil Rights Law was originally enacted by the Legislature to provide "the utmost protection for the free exercise or speech, petition, and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern." L. 1992 Ch. 767. However, as drafted, and as narrowly interpreted by the courts, the application of Section 76-a has failed to accomplish that objective. In practice, the current statute has been strictly limited to cases initiated by persons or business entities that are embroiled in controversies over a public application or permit, usually in a real estate development situation. Meanwhile, many frivolous lawsuits are filed each year that are calculated solely to silence free speech and public participation, which do not specifically arise in the context of the public "permit" process. By revising the definition of an "action involving public petition and participation," this amendment to Section 76-a will better advance the purposes that the Legislature originally identified in enacting New York's anti-SLAPP law.

Additionally, the principal remedy currently provided to victims of SLAPP suits in New York is almost never actually imposed. The courts have failed to use their discretionary power to award costs and

attorney's fees to a defendant found to have been victimized by a frivolous lawsuit intended only to chill free speech. By an award of costs and fees, the Legislature had originally intended to address "threat of personal damages and litigation costs ... as a means of harassing, intimidating, or punishing individuals, unincorporated associations, not-for-profit corporations and others who have involved themselves in public affairs." L. 1992 Ch. 767. This amendment to Section 70-A of the Civil Rights Law makes clear that a court "shall" impose an award of costs and fees, but only if the court finds that the case has been initiated or pursued in bad faith. Together, the two amendments will protect citizens against the threat -- and financial reality -- of abusive litigation, but will not discourage meritorious litigation.

Legislative history

2012: A.10594 A. Judi

Fiscal implications for state and local governments

None.

Effective date

Immediately.