Part 1: Sue to Silence? New York Will Make You Regret It

Editor’s Note: Free speech has a cost problem.

The First Amendment protects the right to speak, but it does not pay the legal bills when someone sues you for doing it. That gap– between the right to say something and the practical ability to survive saying it– is where SLAPP suits live.

A SLAPP, or Strategic Lawsuit Against Public Participation, is a lawsuit filed not to win a judgment but to punish the speaker with the expense, distraction, and reputational damage of defending oneself. The plaintiff doesn’t need to prove anything. The plaintiff just needs to file.

But New York overhauled its anti-SLAPP statute in 2020, giving defendants a fast-track motion to dismiss, an automatic discovery stay, and mandatory fee-shifting when a case lacks a substantial basis. In the five years since, the First Department has built a body of case law that defines how the statute works– and, just as importantly, where it stops.

The following article is a guide to both. Matt Miller walks through the statutory framework, the four appellate decisions that appear in nearly every anti-SLAPP motion to dismiss in New York, and the legal elements that a plaintiff must actually prove to sustain a defamation or commercial disparagement claim. He also examines a recent trial-court ruling that denied an anti-SLAPP motion– a case that shows what happens when the statute is stretched beyond its text. Miller is not writing from the sidelines. A retaliatory defamation action was filed against him, and it was dismissed under the anti-SLAPP statute earlier this year. His perspective is informed by the experience of being on the receiving end of the very tactic this article describes.

***

The terms SLAPP. and Anti-SLAPP tend to show up in headlines when a landlord sues a tenant’s lawyer, or a public figure sues a newspaper. But they come up in other contexts too. I have lived it.

A SLAPP is a Strategic Lawsuit Against Public Participation. The name was coined in the 1980s by University of Denver professors George W. Pring and Penelope Canan.[1] It describes a lawsuit filed not to win on the merits, but to punish speech– reporting, testimony, online commentary, a petition– by forcing the speaker into court. Defamation is the usual vehicle. Interference, conspiracy, trade libel[2], and business tort counts are often stacked on top.

Editor’s Note: We’ve published about defamation before, in “Libel, Slander, Cyber Smear, & Defamation– A Nuts & Bolts Primer”. That article explains the elements of a defamation claim, the differences between libel and slander, and the defenses available– including the First Amendment protections that are central to anti-SLAPP law.

Pring’s observation still holds: SLAPPs are frequently losers in the courthouse and winners in the real world. They do not need to survive summary judgment. They need to impose delay, legal fees, document production, and personal-asset risk on the speaker. The intended result is that the critic stops talking and other people decide not to start.

In New York, a suit filed to stop public criticism of alleged misconduct is often the filing that places the underlying conduct on the permanent public docket. That is how Civil Rights Law § 70-a, § 76-a, and CPLR 3211(g) were written, and how the First Department has applied them.

Why a SLAPP is abusive

The abuse is not a side effect of the litigation. It is the litigation. A SLAPP works through five mechanisms, each deliberate:

• Resource asymmetry. The filer can treat six figures of legal spend as a cost of doing business. The speaker often cannot. A weak complaint still forces an answer, a motion, and months of uncertainty. The asymmetry is the point. The merits can wait.

Editor’s Note: The fee-shifting provisions of anti-SLAPP law address a problem familiar to anyone who has litigated against a better-funded adversary: the cost of defending can be as punishing as the lawsuit itself. We explore this asymmetry and one market response to it in “Demystifying Commercial Litigation Finance.”

• Forum shifting. A public debate about corporate conduct, a development project, or a news report is moved into a caption where the speaker is the defendant and the facts are filtered through pleading rules the public does not read. The plaintiff does not have to win the public argument. The plaintiff only has to change the forum.
• Process as punishment. Discovery is the payload. Interrogatories, document demands, and depositions under oath are expensive whether or not the claim is good. That is why a modern anti-SLAPP statute stays discovery when the special motion is filed. If the stay is the statute working, unrestricted discovery is the SLAPP working.
• Reputation inversion. The complaint accuses the speaker of lying. Search results show the accusation. The speaker’s evidence sits in an opposition brief that, until a court rules, is just another filing. The first document the public sees is the plaintiff’s.
• Chill. Colleagues, sources, and other commentators watch what happens to the first person sued. Silence scales. One caption can police a whole subject.

None of that requires the plaintiff to prove the speech was false. It requires only that the plaintiff be willing to file.

Editor’s Note: The five mechanisms the author describes above– resource asymmetry, forum shifting, process as punishment, reputation inversion, and chill– are not unique to SLAPP suits. They show up, in various combinations, whenever litigation is used as a competitive weapon rather than a means of resolving a genuine dispute. What makes a SLAPP distinctive is that these dynamics are the entire point of the filing, not a side effect of it. The complaint is the product. The courthouse is the distribution channel.

How New York rewrote the rules — and how the pieces fit

New York enacted a narrow anti-SLAPP statute in 1992. Courts read it so tightly that it rarely reached ordinary public speech.[3] Chapter 250, effective November 10, 2020, corrected that.[4] Three changes matter in practice. They also work as one mechanism.

Coverage expanded. An “action involving public petition and participation” now includes any communication in a public forum on an issue of public interest, and other lawful conduct in furtherance of free speech or petition on such an issue. § 76-a(1)(a), (d). That definition is deliberately broad. Public-company disclosures, court filings, medical reviews, landlord-tenant disputes involving a holdout and a developer– these are not “purely private matters.”[5] Once the speech is in that category, the rest of the statute attaches.

The burden flipped, and the meter stopped. On a motion under CPLR 3211(g), once the defendant shows the statute applies, dismissal “shall be granted” unless the plaintiff demonstrates a substantial basis in law, or a substantial argument for extending existing law. That is a higher bar than an ordinary 3211(a)(7) motion. Discovery is stayed while the motion is decided. CPLR 3211(g)(1), (3). The stay is not a courtesy. It is the Legislature’s answer to process-as-punishment.[6]

Editor’s Note: For readers unfamiliar with discovery and dispositive motions– the procedural tools that anti-SLAPP law is designed to short-circuit– we recommend “Demystifying Discovery: What You Need To Know“ and “Litigation & the Dispositive Motion.”

The loser pays: Section 70-a(1)(a) provides that costs and attorney’s fees shall be recovered when the action was commenced or continued without a substantial basis in fact and law. Compensatory damages require an additional showing that the action was brought to harass, intimidate, punish, or otherwise maliciously inhibit speech. Punitive damages require a showing that this was the sole purpose.[7]

Mandatory fees are the cost-shifting answer to resource asymmetry. Punitive damages are reserved for cases that exist only to silence.

The cases that show up in almost every anti-SLAPP motion to dismiss

I use four opinions below for a reason. They are the First Department authorities that appear, in some combination, in nearly every New York anti-SLAPP motion to dismiss after the 2020 amendments:

• Aristocrat Plastic Surgery P.C. v. Silva, 206 A.D.3d 26 (1st Dep’t 2022), is the early construction of “public interest.” A patient posted negative reviews of a surgeon on public websites. The practice sued. The First Department held that those reviews were communications in a public forum on an issue of public interest– medical treatment by a licensed professional– and that the defendant could seek fees and damages under §§ 70-a and 76-a. The holding matters beyond medicine. If a patient review is public-interest speech, commentary on a public company’s disclosures is not a close question.[8] This is the citation for the coverage question: does § 76-a apply at all?
• 215 W. 84th St. Owner LLC v. Bailey, 217 A.D.3d 488 (1st Dep’t 2023), is the developer-sues-the-lawyers case. Counsel for a holdout tenant spoke to the press about alleged harassment connected to emptying a building for a luxury conversion. The owner sued. The complaint was dismissed. The trial court withheld fees. The First Department modified and awarded costs and attorney’s fees under § 70-a: comments about that landlord-tenant dispute were public-interest speech, not a purely private matter, and dismissal for failure to state a claim established the absence of a substantial basis. Punitive damages were denied on that record. Fees were not. This is the citation for the fee question: once the complaint goes, § 70-a(1)(a) is mandatory. The distinction is the statute working as written– fees follow a thin case; punitives require proof of a silencing purpose.
• Reeves v. Associated Newspapers, Ltd., 232 A.D.3d 10 (1st Dep’t 2024), is the controlling statement of “substantial basis” in the Department that hears most Manhattan defamation cases. A public figure sued a reporter and a media company over coverage of a high-profile divorce and related proceedings. Justice González held that “substantial basis” means “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” If the complaint cannot survive ordinary 3211(a)(7) analysis, it necessarily fails 3211(g). Dismissal followed. Mandatory § 70-a fees followed. The case was remanded only to calculate them. This is the citation for the standard of review. Every 3211(g) brief in the First Department is, in substance, an application of Reeves.
• Isaly v. Garde, 2025 N.Y. Slip Op. 04960 (1st Dep’t 2025), confirmed that a 3211(g) dismissal opens the door to § 70-a, and that continuation of an action after the 2020 effective date can bring the amended statute into play. The court affirmed dismissal as against the relevant defendants and directed further proceedings on counsel fees. This is the citation for timing. Plaintiffs who keep a thin case alive after November 10, 2020 do not freeze the old law in place. They step into the new one.

To recap, one of these defines “public interest.” One holds that fees are mandatory once the complaint fails. One defines “substantial basis.” And one confirms that continuing a case after November 10, 2020 brings the amended statute into the caption. Counsel citing the statute also cites these cases because the Appellate Division already did the work.

Together, these four opinions are the spine of a New York anti-SLAPP MTD: coverage (Aristocrat), fees (Bailey), standard (Reeves), continuation (Isaly, with Gottwald v. Sebert, 40 N.Y.3d 240 (2023) behind it). The rest of the brief is facts.

A data point on cost: in July 2026, after Wayfarer Studios’ federal defamation claims against The New York Times were dismissed, a New York court awarded the Times $171,616 under the anti-SLAPP statute. The reporting concerned a matter of public interest. The claims lacked a substantial basis in fact and law. Sue the coverage; fund the coverage.[9]

Editor’s Note: The Wayfarer fee award is worth flagging for reasons that go beyond the headline number. A $171,616 check is painful but not ruinous for a production company that filed a $250 million lawsuit. The real cost is precedential. The ruling tells every future plaintiff considering a defamation claim against a media outlet that the fee clock starts ticking the moment the complaint is filed, and that it runs until the case is resolved. For well-capitalized plaintiffs accustomed to treating litigation costs as a line item, that changes the math. The risk is no longer just losing; it is losing and paying for the privilege of having lost.

The dynamic is not unique to New York. In Illinois, Cook County Circuit Court Judge John J. Tully Jr. recently awarded attorney David Fish of Workplace Law Partners PC over $83,000 in fees under the Illinois Citizen Participation Act (CPA), that state’s anti-SLAPP law, in a September 9, 2026 order arising out of the long-running litigation in Readey v. Holder.[10] Chad Readey, who had been accused of sexual harassment and assault in underlying suits, brought a defamation action against his accusers and their attorneys, claiming Fish had conspired to defame him and improperly disclosed student records obtained through subpoenas to Readey’s former schools. Fish argued the claims were barred by the CPA and obtained dismissal of the claims against him on October 29, 2025, then petitioned for fees. Fish was represented by Martin J. O’Hara and Laura A. Elkayam of Much Shelist PC.

The ruling is also a useful procedural reminder for practitioners outside New York: Judge Tully found that the label “Anti-SLAPP motion” was itself “a bit of a misnomer,” since the Illinois Supreme Court had recently reaffirmed that the CPA “does not create an entirely new type of motion.” The proper vehicle, the court explained, was a combined motion to dismiss that incorporated a prayer for relief under the CPA– not a free-standing “Anti-SLAPP motion.” The mislabeling did not cost Fish the fee award; the court held he was “unquestionably the prevailing party” under the CPA’s fee-shifting provision regardless of how the motion was captioned. The lesson travels: the label on the motion matters less than whether the statutory elements for fee-shifting are met. Readey’s counsel has said they intend to appeal the fee award, and related claims against other defendant attorneys remain pending.[11][12][13]

What the claims actually are — and what they mean

Most SLAPPs arrive dressed up as ordinary torts. The caption says defamation. It often adds tortious interference, trade libel or commercial disparagement, prima facie tort, intentional infliction of emotional distress, or conspiracy. The extra counts are not a second theory of the case. They are a pleading hedge: if defamation dies on actual malice, keep the same speech alive under another name.

New York law does not reward that hedge. Courts look at the gravamen– what the lawsuit is about. If the injury alleged is reputational harm from public speech, the case is a speech case. Relabeling it does not change the elements the plaintiff still cannot plead.

Start with defamation, because that is the claim that does the work.

In New York, a plaintiff must plead and ultimately prove:

1. A statement of fact, not pure opinion.
2. That the statement is false. Truth is a complete defense. Substantial truth is enough. A statement that is substantially accurate, even if not word-perfect, is not defamatory.
3. Publication to a third party.
4. That the statement is of and concerning the plaintiff.
5. Fault.
6. Harm, unless the words are defamatory per se (for example, accusations of a crime, or statements that tend to injure a person in their trade or business).

Falsity alone is not enough. That is the part a SLAPP complaint usually skips.

The fault standard is what separates a real defamation case from a lawsuit filed to punish speech.

For a private person complaining about a purely private matter, New York generally requires negligence: the speaker failed to use reasonable care in checking the statement.

That is not the standard that applies to the cases anti-SLAPP was written for.

When the speech is on a matter of public interest– and under Civil Rights Law § 76-a, “public interest” means any subject other than a purely private matter– the plaintiff must prove actual malice. The same rule applies if the plaintiff is a public official or public figure under New York Times Co. v. Sullivan, 376 U.S. 254 (1964).[14]

Editor’s Note: The actual malice standard requires proof that a statement was made with knowledge of its falsity or reckless disregard for the truth. For a related exploration of the line between actionable false statements and protected opinion, see “What is Puffery, and is Trump’s Puffery a Valid Legal Defense?”

Actual malice does not mean spite. It does not mean the plaintiff was angry, or that the article was harsh, or that the speaker disliked the target. It is a term of art. It means the speaker made the statement:

• knowing it was false, or
• with reckless disregard of whether it was false– a high degree of awareness that the statement was probably false.

The plaintiff must prove that mental state by clear and convincing evidence. Civil Rights Law § 76-a(2) writes that standard into New York law for every action involving public petition and participation.

That is a demanding standard on purpose. Guesswork is not actual malice. A sloppy edit is not actual malice. A disagreement about what an SEC filing means is not actual malice. Relying on public records, court papers, or contemporaneous documents that support the substance of what was said is the opposite of reckless disregard. The speaker’s burden is not to be gentle. The plaintiff’s burden is to prove the speaker knew the statement was false, or seriously doubted it, and published anyway.[15]

That is why so many of these complaints die at the pleadings. The filing recites that the posts were “false and defamatory.” It does not plead facts showing the speaker knew they were false. Under CPLR 3211(g), that omission is fatal. The plaintiff has to demonstrate a substantial basis in fact and law. A conclusion that the words were unkind is not a substantial basis. Reeves is explicit on this: if the complaint cannot survive ordinary 3211(a)(7) analysis, it necessarily fails the higher 3211(g) test. The “substantial basis” standard is not a second chance to replead adjectives. It is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” A reasonable mind cannot accept a bare allegation of falsity as proof of knowing falsity.

Trade libel, commercial disparagement, and the damages problem[16]

Trade libel and commercial disparagement are the counts plaintiffs reach for when they want the case to sound like a business injury rather than a speech case. They are not a shortcut around defamation. In New York they require a false statement of fact about the quality of the plaintiff’s goods or services, published to a third party, made with malice, and special damages.

That last element is the one most of these complaints do not have– and the one plaintiffs most often treat as optional.

Special damages are not a round number in a wherefore clause. They are particularized, out-of-pocket economic loss tied to the specific speech. The plaintiff has to identify the customers, contracts, or transactions lost, and show that those losses were caused by the challenged words– not by the company’s own filings, a falling stock price, a product failure, a bankruptcy, missed earnings, or general market conditions. “Our reputation was harmed” is not special damages. “We lost millions” is not special damages if the complaint never connects a dollar to a sentence.

This is where a lot of SLAPP drafting gives the case away. Plaintiffs file these counts on a whim: the post was critical, therefore it must have cost us money. The law does not work that way. Causation has to run from the words to the loss. If the alleged harm cannot be traced to the specific communication, the claim is not a commercial-disparagement case. It is a defamation case with a different label and a missing element.

Editor’s Note: The relationship between online speech and legal liability extends beyond anti-SLAPP law. Section 230 of the Communications Decency Act provides a separate shield for internet platforms. We cover that framework in “The Communications Decency Act and the Rise of the Trolls.”

The analysis is not technical for its own sake. It is why these counts so often collapse together. A plaintiff who cannot plead actual malice on defamation usually cannot plead malice on trade libel either. A plaintiff who cannot identify a lost customer usually cannot prove interference with a contract either. Stacking theories does not multiply proof. It multiplies the places the complaint can fail.

The other stacked counts

Tortious interference requires a specific contract or business relationship, knowledge of it, intentional procurement of a breach by wrongful means, and damages caused by that interference– not by the underlying business problems the speaker was describing. Public commentary about a company’s public filings is not “wrongful means.” If it were, every securities analysis would be a tort.

Prima facie tort requires the intentional infliction of harm, without excuse or justification, by an act that would otherwise be lawful, and special damages. Speech on a public issue is the opposite of “without justification.” New York courts treat this count as what it usually is: defamation in a different suit.

Intentional infliction of emotional distress requires conduct so outrageous that it exceeds all bounds of decency. Publishing criticism of a public company’s disclosures does not meet that test. Courts will not let a plaintiff recast defamation as IIED to escape the First Amendment and § 76-a.

The pattern is consistent. Take the speech. Give it a new label. Hope one count survives. Anti-SLAPP looks through the labels. If the lawsuit targets public-interest speech, the statute applies to the whole complaint. Inventing a damages figure does not create a substantial basis. The damages still have to be real, particularized, and caused by the words.

Editor’s Note: The count-stacking pattern the author describes is worth pausing on, because it reveals something about how litigation incentives can misfire. In ordinary commercial litigation, pleading alternative theories is standard practice– a belt-and-suspenders approach that most judges tolerate. In a SLAPP, the same technique serves a different function: each additional count is another deposition, another set of interrogatories, another round of document demands the defendant has to survive. The theories aren’t really alternative. They’re cumulative– cumulative in cost. Anti-SLAPP law treats them accordingly. If every count targets the same speech, the statute applies to the whole complaint, and the fee clock runs on all of it.

How the pieces compound

In a public-interest case the plaintiff must prove falsity and actual malice by clear and convincing evidence. On trade libel and commercial disparagement, the plaintiff must also plead special damages tied to the specific speech. On the 3211(g) motion, the plaintiff must show a substantial basis for that proof before discovery begins. If the complaint cannot state a claim under ordinary 3211(a)(7), it lacks a substantial basis under 3211(g). That is Reeves. Continuation of a pre-2020 case after the amendment’s effective date can bring the amended statute into play. That is Gottwald and Isaly.[17]

The practical result is compounding, not sequential. Fail actual malice, and defamation fails. Fail special damages, and trade libel fails. Fail both, and the fee statute is no longer discretionary. The plaintiff who filed to raise the speaker’s costs has raised his own.

If the complaint somehow survives the pleading stage, that is not good news for the plaintiff. It opens interrogatories, document demands, and depositions under oath. Discovery does not protect a thin claim. It tests knowledge of falsity and the damages story. A damages number that cannot be sourced will not improve under oath. Counsel who files a baseless SLAPP is not insulated; courts can look at the lawyers’ conduct separately.

A judge watching the file is not powerless. A court that sees evidence of a crime– perjury, fraud on the court, obstruction– may refer the matter to prosecutors on its own initiative. The U.S. Attorney in federal court; the District Attorney or Attorney General in state court. The judge cannot order a prosecution. The referral is real.

What the abuse looks like in a captionRead those holdings together, and the filing pattern is easy to spot. The plaintiff is usually the better-capitalized party. The speech is public. The claimed harm is reputational or commercial. The complaint recites falsity and skips actual malice. On trade libel it recites a damages number and skips the customers, the contracts, and the causal chain. The extra torts are there to keep the caption open. The filing still does work even when the law does not. It forces counsel. It freezes sources. It puts “defamation defendant” next to the speaker’s name until a court erases it.

New York’s response is equally consistent. If the speech is on a non-private matter, the statute applies. The plaintiff must show a substantial basis for falsity and knowledge of falsity or reckless disregard. On commercial disparagement, the plaintiff must also show special damages caused by the specific words. A disagreement with the criticism is not that showing. A round number is not that showing. If the showing fails, fees are mandatory. If the record supports a finding that the suit existed to inhibit speech, damages can go further.

Even a short-lived SLAPP writes a record. To defeat the claim, the defendant places the underlying facts into opposition papers that carry litigation privilege. Those papers become part of the public file. Searchable. Citable. Permanent.

The suit meant to bury the story becomes the caption that preserves it. That is not a side effect. It is what happens when a plaintiff uses the courthouse as a press release and then has to answer the elements.

Editor’s Note: There is a deep irony here that deserves emphasis. The plaintiff who files a SLAPP is, almost always, trying to suppress a story. But New York’s anti-SLAPP framework turns the courthouse into a printing press. The defendant’s opposition papers– which lay out the underlying facts in detail, under litigation privilege– become part of the public record on NYSCEF for anyone with an internet connection. The more aggressively the plaintiff sues, the more completely the defendant documents the conduct the plaintiff wanted buried. It is the Streisand Effect with a docket number.

This article focuses on New York, but the problem it describes is national. As of mid-2026, 40 states and the District of Columbia have some form of anti-SLAPP statute– but the protections vary enormously. California’s law (Code Civ. Proc. § 425.16), enacted in 1992, was the first broad anti-SLAPP statute and remains one of the strongest. Texas followed with the Texas Citizens Participation Act in 2011. New York’s 2020 overhaul was modeled partly on California’s approach. Illinois has its own version, the Citizen Participation Act, which remains active in the courts– a September 2026 Cook County ruling awarding an Illinois defense attorney over $83,000 in fees under that statute is discussed below. Other states– Massachusetts, Maryland, Virginia– have narrower statutes that cover only speech related to government petitioning, leaving ordinary public commentary unprotected. A handful of states still have no anti-SLAPP law at all.

The Uniform Law Commission has tried to fix the patchwork. In 2020, it finalized the Uniform Public Expression Protection Act (UPEPA), a model statute that standardizes the motion procedure, the discovery stay, the burden shift, mandatory fee-shifting, and the right to an immediate appeal. As of September 2026, seventeen states have enacted a version of the UPEPA, including Washington (the first, in 2021), Michigan, Ohio, South Dakota, and Missouri (the most recent, in July 2026).

The ACLU has supported UPEPA adoption in several states– the ACLU of Illinois, for example, backed HB 1077 to replace Illinois’s outdated anti-SLAPP statute with a UPEPA-based framework. And the ACLU’s national litigation arm has used New York’s anti-SLAPP statute directly– filing a motion to dismiss and for fees on behalf of faculty members who were sued for publicly criticizing the university’s crackdown on student protesters. That case is a textbook SLAPP: the speech was public, the subject was a matter of national attention, and the lawsuit targeted the speakers for taking a side.[18] The variation across states matters for a practical reason: forum shopping. A plaintiff who can choose where to file will choose the state with the weakest protections. UPEPA was designed to close that gap. Until it does, the strength of anyone’s anti-SLAPP defense depends on the accident of geography.[19]

Two organizations track this landscape in detail. The Reporters Committee for Freedom of the Press maintains a comprehensive Anti-SLAPP Legal Guide with state-by-state breakdowns of statutory text, case law, and recent developments– an indispensable resource for any practitioner or journalist facing a SLAPP threat. The Institute for Free Speech publishes an Anti-SLAPP Report Card grading every state’s statute. Both are worth bookmarking.

PART 2: The Boundary and the Misfire

To recap, Anti-SLAPP is not a license to defame. A plaintiff who can show a false statement of fact, actual malice, particularized damages where the claim requires them, and a substantial basis in fact and law is not stripped of a remedy. Reputation still has a cause of action. What it does not have is a right to skip the elements and collect a filing fee.

The statute targets the lawsuit that cannot make that showing and was filed anyway– the complaint whose principal function is cost, delay, and intimidation. That is the difference between protecting reputation and using process as a silencing device.

If the response to public criticism is to sue the speaker, the result in New York is frequently the opposite of what was intended. The allegations enter the record under the plaintiff’s own index number. The speaker’s documents enter with them. The fee statute is mandatory. And if the case is thin enough, the court may look past the caption to the conduct that produced it.

That is how the First Department applied the statute in Aristocrat, Bailey, Reeves, and Isaly. It is how a New York court applied the statute again this summer in the Times fee proceeding. It is also how one retaliatory complaint against me ended on June 9.

But the statute is not a general defense against every defamation claim that involves words. A September 2026 decision from New York County Supreme Court shows what happens when it is stretched past its text. In Barbaz v. Carney a/k/a Shah and CrewBloom LLC (Index No. 156269/2026), defendants tried to use anti-SLAPP to dismiss claims arising from private emails and counsel letters sent to a limited audience. The court rejected the argument. The ruling is a clear example of misapplication.

Misapplication in practice: Barbaz v. Carney

Alec Michael Barbaz is not a public figure. He was an Internal Audit Manager at Point72 L.P., a private investment firm.[20] The complaint does not allege that he held any public office, sought public attention, or thrust himself into a public controversy. He is a private individual.

The communications at issue were not public speech. They were private emails and letters sent to a closed group of recipients. According to the Verified Complaint, after Barbaz and Brianna Carney (also known as Brianna Shah) ended their engagement in late 2023, Carney began a campaign of statements directed at his employer and selected private organizations. The complaint describes those statements as false.

The January 17, 2024 email to Point72 employees

On January 17, 2024, Carney allegedly sent an email with the subject line “Action Needed: Abuse of Power” to more than a dozen Point72 employees, including human-resources staff. The email accused Barbaz of an “unprofessional relationship” with a coworker, Julia Brakeman, and of “abuse of power.”[21] It stated that he had put Brakeman “in an even more uncomfortable situation by confiding in her about our personal relationship struggles,” that the “most extremely abuse of power” [sic] occurred when he asked her to accompany him on an apartment tour arranged by text, and that such conduct created an “unequal power dynamic,” was “misaligned to the company culture of Point72,” was “costly to stakeholders,” could “jeopardize the integrity of his audits,” and showed an “inability to set clear boundaries in the workplace and exercise sound judgment in a professional capacity.”

The complaint alleges these statements were lies. It further alleges that Point72’s Chief Administrative Officer later testified there was no romantic relationship and that Brakeman confirmed she had never been made to feel uncomfortable.[22] The email was not posted online. It was not published in a newspaper or on social media. It was sent to a limited, private list of coworkers and HR personnel.

The June 24, 2024 counsel letter

A second set of statements appears in a June 24, 2024 letter from counsel, described as a “Cease & Desist Demand Letter regarding [Plaintiff’s] illegal conduct and harassment of Brianna Carney.” According to the complaint, the letter accused Barbaz of possessing an “illegal duplicate device” that allowed him to fraudulently impersonate Carney, access her online accounts, medical records, Tesla systems, and her Medtronic CareLink insulin-delivery application–allegedly placing her “at risk of imminent death” or “grave physical injury.” It further claimed he had “illegally export[ed] thousands of files of protected trade secret information from CrewBloom,” “hack[ed] into CrewBloom’s system,” and used Point72 devices to do it. CrewBloom was said to have spent “tens of thousands of dollars”[23] investigating the claimed breach.

The complaint calls these accusations fabrications. It alleges a forensic expert later concluded the “illegal duplicate device” theory was “simply not feasible or possible from a forensic or technical standpoint” and that “no evidence whatsoever was found to support Ms. Carney’s claims.” Like the January email, the letter was directed to Point72, not to the public.

The May 7, 2024 email to advocacy groups

A third set of statements appears in a May 7, 2024 email to the Battered Women’s Justice Project (and, the complaint says, similar messages to other private organizations). Carney allegedly wrote that Barbaz “has been cyber stalking me since” the breakup and that “the Cyber Forensics Team of the Brooklyn DA’s office has confirmed installation of spyware.” The complaint alleges the Brooklyn District Attorney’s Office had in fact told Carney the opposite: that no malware or spyware had been detected or installed.[24]

These were not statements made in a public forum. They were private messages to selected recipients about a private individual.

Why anti-SLAPP did not apply

Defendants moved under CPLR 3211(g) and sought fees under § 70-a. They argued the case targeted speech on issues of public interest–workplace power dynamics, cyber-stalking, data security–and that the lawsuit chilled their right to petition.[25]

Justice Phaedra F. Perry-Bond rejected the argument in a decision filed September 15, 2026. The court held that defendants had failed to show the communications involved public petition and participation:[26]

Defendants fail to show the challenged communications, specifically e-mails and letters sent to plaintiff’s employer and co-workers, involved public petition and participation. Each of the targeted letters and e-mails were sent to a limited private audience in an attempt to dissuade plaintiff’s employer from continuing a relationship with him or to seek counsel, and were “not shared on social media or any other platform accessible to the general public” (see Zaiger LLC v Bucher Law PLLC, 238 AD3d 687, 688 (1st Dept 2025)]; see also Daniel Szalkiewicz & Associates, P.C. v Liu, 244 AD3d 652, 654 [1st Dept 2025]). Moreover, defendants are not being sued for any exercise of their right to public petition as none of the challenged communications involve Carney’s complaints to the Brooklyn District Attorney or her complaint filed in the Federal Litigation.[27]

Three points follow directly from that holding.

First, the speech was private. The statute requires a public forum or a place open to the public. Private emails to a closed corporate distribution list and counsel letters sent to a specific employer do not meet that requirement. Calling the subject matter “important” does not convert a private communication into public petition.

Second, Barbaz is a private person. Anti-SLAPP was not written to give defendants a free pass to make false statements about private individuals in private channels. The actual-malice standard that applies to public figures and public-interest speech under New York Times Co. v. Sullivan and § 76-a does not automatically attach to every defamation claim. When the plaintiff is a private person and the statements concern a private matter, ordinary negligence can suffice. The statute does not rewrite that rule for private emails.

Third, the claims were about alleged lies, not about protected petitioning. The court noted that defendants were not being sued for any actual petition to the government or for filing their federal lawsuit. They were being sued for the private statements that preceded those steps. Anti-SLAPP protects the right to petition; it does not immunize private statements that are alleged to be false simply because a petition later occurs.

The line the statute draws

The 2020 amendments work when they are properly applied: they stop resource asymmetry from being used as a weapon against public speech, stay discovery while the motion is decided, and impose mandatory fees when a case lacks a substantial basis. Those protections matter. They should not be diluted by overuse.

When defendants invoke anti-SLAPP against private emails and limited-distribution letters accusing a private person of workplace misconduct, criminal hacking, and interference with medical devices, they are asking the statute to do something it was not designed to do. The Barbaz court correctly declined the invitation. The core defamation and tortious-interference claims based on the January 17 email, the June 24 letter, and the May 7 email were allowed to proceed. The anti-SLAPP motion was denied.[28]

That result is not a weakening of free-speech protection. It is an application of the statute’s actual text. Public speech in a public forum on a matter of public interest is protected. Private statements about a private person, sent to a limited audience and alleged to be false, are not automatically covered by the same shield. Treating them as if they were turns a specialized protection into a general immunity. New York’s courts have so far refused to make that leap. The four First Department cases that appear in nearly every anti-SLAPP motion to dismiss– Aristocrat, Bailey, Reeves, Isaly– define the statute’s reach. Barbaz defines its boundary.

Editor’s Note: Barbaz is still ongoing. The September 15 decision denied the defendants’ anti-SLAPP motion, including their § 70-a fee request, at the pleading stage. Because the court found the private emails and letters were not “public petition and participation,” § 70-a’s fees, damages, and burden shift are off the table, and the case proceeds as an ordinary defamation action headed into discovery.

This does not mean Barbaz has won. Surviving a motion to dismiss is not a finding that the statements were false. Nor does it mean he will prevail. The court dismissed his emotional-distress claim, and whether the statements are protected by a qualified privilege remains a question of fact he will have to overcome with evidence of malice. The ruling shows only that the anti-SLAPP shield turns on where speech is made and who hears it, not on how serious the subject sounds.

Barbaz matters for a reason Miller alludes to but does not state directly: it protects anti-SLAPP law from itself. If the statute could be invoked to shield private accusations sent by email to a handful of people, the phrase “public petition and participation” would lose any limiting principle. Every defamation defendant would file a 3211(g) motion as a matter of course, whether the speech was a newspaper article or a late-night text. That kind of overuse doesn’t strengthen a statute. It erodes judicial patience with the statute, which is worse. The strongest version of New York’s anti-SLAPP framework is the one where courts apply it rigorously to the cases it was designed for and decline to extend it to the cases it wasn’t. That is what Perry-Bond did here.

Additional Reading from Barbaz v. Carney (Index No. 156269/2026):

• Defendants’ Memorandum of Law in Support of Motion to Dismiss and for Fees, NYSCEF Doc. No. 7 (filed June 15, 2026).
• Plaintiff’s Memorandum of Law in Opposition, NYSCEF Doc. No. 19 (filed June 30, 2026).
• Defendants’ Reply Memorandum of Law, NYSCEF Doc. No. 26 (filed July 3, 2026).
• Decision + Order on Motion, NYSCEF Doc. No. 27 (filed Sept. 15, 2026) (Hon. Phaedra F. Perry-Bond, J.S.C.).

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[1] E.g., A Brief History of SLAPP Suits (ACLU Ohio). See also George W. Pring,  SLAPPs: Strategic Lawsuits against Public Participation (Pace Environmental Law Review, September 1989, Vol. 7, Issue 1); Canan, Penelope, and Pring, George W. Strategic Lawsuits Against Public Participation (SLAPPs), 1987-1990:  [United States].

[2] For more on trade libel and commercial disparagement, see “Libel, Slander, Cyber Smear, & Defamation — A Nuts & Bolts Primer.”.

[3] L. 1992, ch. 767. See Assembly Mem. in Support, Bill Jacket, L. 2020, ch. 250, at 5 (describing the Legislature’s disagreement with courts’ ‘narrow interpretation’).

[4] L. 2020, ch. 250, effective November 10, 2020. See N.Y. Civil Rights Law §§ 70-a, 76-a; CPLR 3211(g).

[5] N.Y. Civil Rights Law § 76-a(1)(a), (d).

[6] CPLR 3211(g)(1), (3).

[7] N.Y. Civil Rights Law § 70-a(1)(a)–(c).

[8] This is the author’s inference from the Aristocrat holding. The court did not address public-company commentary directly, but the breadth of the ‘public interest’ definition under § 76-a(1)(d) (‘any subject other than a purely private matter’) supports the point.

[9] Wayfarer Studios Inc. v. The New York Times Co., N.Y. Sup. Ct., N.Y. County (July 2026) (awarding $171,616.20 in fees under Civil Rights Law § 70-a). See, e.g., TMZ, “Justin Baldoni’s Studio Ordered to Pay 6-Figure Sum in Legal Fees to New York Times” (July 27, 2026).

[10] Readey v. Holder, Nos. 2022 L 5944, 2022 L 11495 and 2023 L 8661 (Cir. Ct. Cook Cnty., Ill.) (order granting fees under the Illinois Citizen Participation Act, Sept. 9, 2026); see Grace Barbic, “Law firm awarded $83K in fees in SLAPP ruling,” Chicago Daily Law Bulletin/Lawyerport (Sept. 17, 2026).

[11] Editor’s Note: The Illinois Supreme Court revisited the CPA again in Glorioso v. Sun-Times Media Holdings, LLC, 2024 IL 130137 (Nov. 2024), holding that courts must ask whether an objective person would find the movant’s acts reasonably calculated to elicit a favorable government action or outcome– not whether the movant subjectively believed so. Applying that standard, the court held that newspaper articles reporting on a government investigation, without a specific request for government action, fell outside the Act, since the CPA protects government participation rather than all reporting on matters of public concern. The 2025 amendment to Section 15, discussed above, responded to that gap by adding “including freedom of the press” to the statute’s applicability clause.

[12] Editor’s Note: At least one federal court has held that the Illinois CPA is a substantive rule that supplements, rather than conflicts with, Federal Rules of Civil Procedure 12 and 56– making it more likely to survive the Erie-doctrine challenges that have tripped up other states’ anti-SLAPP statutes in federal court. Trudeau v. ConsumerAffairs.com, Inc., No. 10 C 7193, 2011 WL 3898041 (N.D. Ill. Sept. 6, 2011).

[13] Editor’s Note: The Illinois Supreme Court narrowed the CPA’s reach considerably in the foundational case construing it. In Sandholm v. Kuecker, 2012 IL 111443, the court held that the statute’s “based on, relates to, or is in response to” language means solely based on, relating to, or in response to protected petitioning activity– so a suit that also seeks redress for genuinely tortious conduct is not subject to dismissal just because it touches on protected speech somewhere in the complaint. The court added that the CPA “was not intended to protect those who commit tortious acts and then seek refuge in the immunity conferred by the statute.” That reasoning anticipates the same boundary line Barbaz draws for New York’s statute: an anti-SLAPP law protects public participation, not whatever defendant happens to invoke it.

[14] New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964); N.Y. Civil Rights Law § 76-a(2).

[15] N.Y. Civil Rights Law § 76-a(2); see also Reeves, 232 A.D.3d at 22–24.

[16] Editor’s Note: For a practical guide to FRCP Rule 9(b) and its heightened pleading standard for fraud, read “It’s All in the Details: The Importance of FRCP Rule 9 in Fraud Cases.”

[17] Reeves, 232 A.D.3d at 20–24 (defining ‘substantial basis’ as ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’).

[18] A few other states illustrate how differently “anti-SLAPP” can be built. Georgia requires an evidentiary hearing before a case can be dismissed under its statute, Jefferson v. Stripling, 316 Ga. App. 197 (2012)– a more plaintiff-protective procedure than New York’s motion-on-the-papers approach. Louisiana’s Article 971 of the Code of Civil Procedure uses a burden-shifting framework similar to California’s, Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164 (5th Cir. 2009). And Washington’s statute (RCW 4.24.525), once a model for other states, was held unconstitutional by Washington’s own supreme court as a violation of the right to a jury trial– a defect the Seventh Circuit later cited in declining to apply it in federal court, Intercon Solutions, Inc. v. Basel Action Network, 791 F.3d 729 (7th Cir. 2015).

[19] There is a wrinkle even within a single state’s borders: whether its anti-SLAPP statute applies at all in federal court. No federal anti-SLAPP statute exists, so a state statute’s special motion procedure must survive an Erie-doctrine challenge under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), and Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), before a federal court sitting in diversity will apply it. The circuits are split: the First and Ninth Circuits apply state anti-SLAPP procedures (Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010); U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999)), while the D.C., Eleventh, Tenth, and Fifth Circuits have declined to (Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015); Carbone v. Cable News Network, Inc., 910 F.3d 1345 (11th Cir. 2018); Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659 (10th Cir. 2018); Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019)). New York’s own statute has fared no better in federal court on this point: the Southern District of New York held in Kesner v. Buhl, 590 F. Supp. 3d 680 (S.D.N.Y. 2022), that New York’s anti-SLAPP statute does not apply in federal diversity actions, though some later S.D.N.Y. decisions have applied the amended Civil Rights Law § 76-a as substantive. A defendant weighing removal, or a plaintiff weighing where to file, should not assume the special motion travels with the statute across the federal-state line.

[20] Verified Complaint ¶¶ 12–14, NYSCEF Doc. No. 1.

[21] Verified Complaint ¶¶ 52–77, NYSCEF Doc. No. 1, Barbaz v. Carney, Index No. 156269/2026 (N.Y. Sup. Ct., N.Y. County, filed May 14, 2026).

[22] Verified Complaint ¶¶ 64–71, NYSCEF Doc. No. 1 (alleging testimony from Point72’s Chief Administrative Officer and Brakeman’s confirmation).

[23] Verified Complaint ¶¶ 78–105, NYSCEF Doc. No. 1.

[24] Verified Complaint ¶¶ 106–118, NYSCEF Doc. No. 1.

[25] For a detailed look at how courts handle requests to unseal business information, see “The Civil Courts: When Your ‘Confidential Business Information’ Isn’t So Secret.”

[26] Barbaz v. Carney a/k/a Shah and CrewBloom LLC, Index No. 156269/2026, Decision + Order on Motion, NYSCEF Doc. No. 27 (N.Y. Sup. Ct., N.Y. County, Sept. 15, 2026) (Perry-Bond, J.).

[27] Decision + Order on Motion at 4–5, NYSCEF Doc. No. 27 (quoting Zaiger LLC v. Bucher Law PLLC, 238 A.D.3d 687, 688 [1st Dep’t 2025]).

[28] The court cited Zaiger LLC v. Bucher Law PLLC, 238 A.D.3d 687, 688 (1st Dep’t 2025), and Daniel Szalkiewicz & Associates, P.C. v. Liu, 244 A.D.3d 652, 654 (1st Dep’t 2025), for the principle that private communications to a limited audience do not constitute public petition and participation.