510 F.Supp.3d 21
S.D.N.Y.2020Background
- Sarah Palin sued The New York Times Company and James Bennet for defamation over a June 14, 2017 editorial; Palin is undisputedly a public figure.
- In an August 28, 2020 Opinion the court held that the federal Constitution (New York Times Co. v. Sullivan) requires proof of actual malice, and it declined to decide whether New York law independently imposed that burden.
- New York amended its anti‑SLAPP statute, N.Y. Civ. Rights Law § 76‑a, effective November 10, 2020, broadening the definition of "action involving public petition and participation" and expressly requiring public figures to prove actual malice by clear and convincing evidence.
- Defendants moved under Fed. R. Civ. P. 54(b) to revise the court's prior Opinion to reflect the amended § 76‑a and to hold that it applies retroactively to this pending action.
- The court held that the amendment is remedial, demonstrated urgency, was intended to correct the prior narrow scope, and therefore should be applied retroactively; as a result Palin must, under state law, prove actual malice by clear and convincing evidence (which mirrors the federal burden).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 54(b) reconsideration is warranted by intervening change in law | Reconsideration unnecessary; prior holding that actual malice applies suffices and deciding source of rule is advisory | Intervening amendment to NY anti‑SLAPP statute is a controlling change warranting reconsideration | Reconsideration granted: intervening change in law is a proper reason to revise the interlocutory order |
| Whether amended N.Y. Civ. Rights Law § 76‑a applies to this pending action (retroactivity) | Amendment should not be applied retroactively; doing so would be advisory and could raise reliance/due process concerns | § 76‑a is remedial, Legislature signaled urgency, and intended to correct prior narrow interpretation; it should apply retroactively | § 76‑a applies retroactively to this action because it is remedial and the Legislature enacted it to correct prior scope limitations |
| Whether § 76‑a imposes an additional burden on Palin beyond the federal Constitution | Palin: source of actual malice rule irrelevant to trial; federal rule already governs and suffices | Defs: state law independently requires clear and convincing proof and court should apply it, which aids jury instructions and appeals | Because § 76‑a applies, Palin must prove actual malice by clear and convincing evidence under state law — the same showing required federally in any event |
| Whether retroactive application raises due process or reliance concerns | Retroactivity imposes a significant new burden on conduct that occurred years ago and may violate due process | No meaningful reliance interest shown; public figures were never entitled to damages without actual malice under First Amendment; retroactivity protects defendants' reliance interests | No due process violation: plaintiff identified no reasonable reliance interest and retroactive application does not cause harsh impacts like in Regina |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (establishes actual malice standard for public‑figure defamation)
- Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147 (2d Cir. 2003) (intervening change of controlling law justifies revisiting interlocutory decisions)
- Matter of Gleason (Michael Vee, Ltd.), 96 N.Y.2d 117 (2001) (remedial statutes presumptively apply retroactively absent contrary indication)
- Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 N.Y.3d 332 (2020) (retroactivity may violate due process where it causes harsh impacts or upends reasonable reliance)
- Adelson v. Harris, 774 F.3d 803 (2d Cir. 2014) (federal courts must apply substantive state anti‑SLAPP provisions in diversity cases)
- La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020) (distinguishes substantive vs. procedural aspects of state anti‑SLAPP laws in federal court)
- Chandok v. Klessig, 632 F.3d 803 (2d Cir. 2011) (New York courts narrowly interpreted pre‑amendment § 76‑a to public applicants/permits)
- Davis v. United States, 564 U.S. 229 (2011) (discusses reliance on binding appellate precedent in retroactivity contexts)