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Section 76-a of the Civil Rights Law was originally enacted by the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.