BILL NUMBER: S1458

SPONSOR: SANDERS
 
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Section 76-a of the Civil Rights Law was originally enacted by the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 inter-
preted 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 frivo-
lous 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 amend-
ment to Section 76-a will better advance the purposes that the Legisla-
ture 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 attor-
ney'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:

S.1638 of 2015-2016 (Espaillat): Died in Codes

A.258 of 2015-2016 (Weinstein); Passed Assembly

S.7280 of 2014 (Espaillat): Died in Rules

A.856 of 2013-2014 (Weinstein): Passed Assembly

A.10594 of 2012 (Weinstein): Died in Judiciary

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall have
become a law and shall apply to actions commenced on or after such date.