Old-timers here may remember when a baby lawyer sued the internet for having widely criticized his taking on, and botching in shocking fashion, a murder trial. The case was ultimately dismissed, after thousands of pages of bizarre arguments, but ended with a whimper rather than the bench slap so many expected.

That it ended in defeat was hardly surprising.

That the court dismissed the complaint should come as no surprise. It was baseless and stunk, but you already knew that.  It was procedurally defective in so many ways that it would have taken a small fortune to expound on the arguments and issues that are normally subject to intense scrutiny in an ordinary case, and most defendants just waved those issues for the sake of expediency and a final determination on the merits.

That it ended without sanctions, however, shocked the unwary.

As for the denial of sanctions, this will give rise to some confusion by lawyers and others from foreign (meaning, not New York) jurisdictions.  In New York, sanctions are so rarely imposed as to be essentially nonexistent.  Was this the one case so outrageous, so frivolous, that sanctions would be imposed?

There are numerous factors that may have influenced the denial of sanctions.  Foremost, the dismissal of the complaint would ordinarily be deemed sufficient “punishment.” That’s how New York rolls.  But additionally, we have the fact that Joseph Rakofsky will live in perpetuity on the internet as the poster boy for what not to do in so many different ways.  More punishment.

That was 2013. That was back when New York, progressive state that it was, lacked an anti-SLAPP law, a law providing a special process and mandatory costs and attorneys fees, for frivolous actions to silence the exercise of free speech. But this is 2020, and New York has finally enacted its law.

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' exercise of the
rights of free speech and petition about matters of public interest.

That NY has finally come of age, recognizing that the tactical use of lawsuit, as Trump has openly employed, or the blustering attempt to shut down criticism as others, less sophisticated in their thuggery, must not only be stopped before too much damage is done, but with a cost associated. If you want to use the legal system to violate people’s First Amendment rights, then be certain enough of the merit of your claim to take the hit should you lose on the anti-SLAPP motion to dismiss.

So yea? Well, yes, it’s a good thing that NY has finally seen fit to come into the 21st Century by mandating (“shall”) that costs and attorneys fees be awarded the prevailing party. Although, it’s always important to remember that you can’t get blood from a rock. Had there been a sanctions award against Rakofsky, it would have made a nice wall hanging in a frame since it’s not as if the kid had a pot to piss in.

But that was back then. Now, the problem not only remains, but remains in a fashion that makes New York’s effort archaic. The internet is everywhere. It’s in New York and California, and everywhere in between and across some miscellaneous oceans. Write something in New York and some angry wag will try to sue you in some god-forsaken place like, I dunno, Nebraska.

Yes, it’s great that New York has finally enacted an anti-SLAPP law, but that would have been cool a decade ago. What’s long been needed is a federal anti-SLAPP law when actions are commenced in United States District Courts under diversity jurisdiction, as the efforts to silence public participation are no longer just local, and regardless of the ultimate outcome of these actions, the cost and burden of being sued remains as much of a deterrent to free speech as before.

So thanks, New York, for doing the right thing, even if it’s a decade late. Now, if only Congress could get off its ass.