New York, N.Y. (August 20, 2024) - On August 7, 2024, the New York Supreme Court, Appellate Division, Second Department issued a decision of note under the New York anti-SLAPP Law. Nelson v. Ardrey, 2024 NY Slip Op 04147. The Court's decision followed rulings by other courts to conclude that Facebook and similar social media platforms constitute public forums under the Law (Civil Rights Law §§ 70-a, 76-a). As to the merits of the claim presented, the court ruled that the particular Facebook posts - which accused the plaintiff of sexual abuse - were not encompassed by the anti-SLAPP Law because they concerned purely private matters and were addressed to a small audience.
The anti-SLAPP Law was first enacted in 1992 to protect the exercise of free speech by deterring "Strategic Lawsuits Against Public Participation." For many years, this statute only protected a narrow class of people who participated in public affairs against retaliatory lawsuits. Under the Law, citizens may assert counterclaims seeking costs, fees, and compensatory and punitive damages when sued based on their protected conduct. 2020 amendments expanded the protections of the Law to protect a broad, almost all-encompassing group of citizens. The Law now protects conduct about matters of "[p]ublic interest," which "mean[s] any subject other than a purely private matter. The expansion reflects the statute's purpose to provide "the utmost protection or the free exercise of speech, petition[,] and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern." Most commonly, the Law is used to defend against defamation claims.
In Nelson, the Court considered whether Facebook and similar social media platforms constitute public forums under the Law. If raising an issue in such a forum could be considered protected speech in a public forum, the Law might apply and a citizen sued for speech engaged in such a forum could interpose an anti-SLAPP claim. Answering the question in the affirmative, the court looked to decisions on point in various jurisdictions, including California decisions on the issue under that State's long-standing anti-SLAPP law. California courts have long held that "Facebook pages ... are 'public forums,' as they are accessible to anyone who consents to Facebook's Terms." Cross v. Facebook, Inc., 14 Cal. App. 5th 190, 199 (2017). So too are websites accessible to the public. Barrett v. Rosenthal, 40 Cal. 4th 33, 41 (2006). The same reasoning has been used by courts in Nevada and Connecticut, and in one decision by a judge in the Eastern District of New York. Coleman v Grand, 523 F. Supp. 3d 244, 266 (E.D.N.Y. 2021). But the Nelson decision is the first time a New York State appellate court has addressed the issue.
Although the Nelson Court held that Facebook was a public forum, it held that the speech in question was not covered by the Law and could not be invoked to defend a defamation claim because the defendants had "commented not on a community post, but rather on a post related to the birthday of the plaintiff's daughter." The defendants had posted several comments under a post on the plaintiff's personal Facebook page, asserting that the plaintiff had sexually abused one of the defendants when she was four years old. The Court concluded that, although the comments pertained to issues of broad public interest, they were nonetheless essentially about a "purely private matter" since they were "directed only to a limited, private audience."
As a result of this ruling, future efforts to mount an anti-SLAPP defense in response to similar speech engaged in before a finite audience focused on private matters are likely to be fruitless. However, the Law will continue to be successfully invoked to protect speech about public issues posted on social media including community posts and the like.
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