New York has increased protections for journalists and media organizations who face threatening but ultimately bogus lawsuits against them.
Last week, New York Governor Andrew Cuomo signed a new law to curb abusive “strategic lawsuits against public participation” called SLAPPs. These lawsuits, which usually waste time and money, are filed as a strategy of horror used by the rich and powerful (e.g., politicians who are more likely to fly the flag of slander). In these cases, the plaintiff knows that he has little hope of victory. However, direct legal victory in court is not always the goal.
Litigation is protracted and ruinously expensive. New York’s update brings it in line with 30 other states with similar statutes. Here is an introduction to the new law.
How have these media company protections been applied in practice?
SLAPP cases have been around for a long time. About 30 states and Washington, DC have some version of the anti-SLAPP laws on the books. Legal protection in New York was first enacted in 2008. In essence, the law should strengthen protections against early change to ensure a free press and better balance the ability of the wealthy to use their significant legal resources in their struggles against bad PR.
Broadcaster and comedian John Oliver spoke last November about how his show was embroiled in a SLAPP lawsuit for criticizing a mining mogul. The 26-minute YouTube video has 12.5 million views.
Before he became president, Donald Trump brought one of the most expensive defamation suits against author and journalist Timothy O’Brien for claiming in his 2005 book “TrumpNation: The Art of Being Donald” that Trump is not as rich as he is claimed.
“I spent a few dollars on legal fees and they spent a lot more. I did it to make his life miserable, which I’m happy about, “said Trump at the time. Trump, known to be contentious then and now, lost the lawsuit after an appeal upheld a judge’s decision to dismiss it.
Is this legal situation worsening for media companies?
Anecdotally, “the heat has increased a little more this year,” said Dan Novack, attorney and chairman of the Media Bar Committee.
The Trump administration’s defamation lawsuit against a Wisconsin television station for running a political ad was “frightening,” Novack said, especially given that it was in one of the country’s smallest media markets. Political advertising is the lifeblood of local TV channels. Not only is there a fear of losing revenue if no ads are shown, but there is also a real fear of being forced to pay expensive legal fees to defend freedom of speech.
It is not just smaller, less legal media organizations that are facing this problem. Individuals are also at higher risk when it comes to expressing their views on companies on social media. This is evident from examples from a New York Times statement this year. According to the Reporters’ Committee on Freedom of the Press, the highest volume of SLAPP’s concerns real estate issues, environmental activists, animal rights and officials.
Defamation insurance, which media companies took out to protect themselves, has increased this year, Novack said, despite being unable to share numbers.
What’s new about this law?
New York’s first attempts to defend against SLAPP date back to the early 1990s after a series of bogus cases were leveled by bustling real estate companies to silence their critics, mostly environmental activists. But until now this law was incredibly narrow and only applied to a very specific group of people. This threshold has been lowered in order to extend it to almost everyone.