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New anti-SLAPP laws should apply to Dr Luke v Kesha litigation, say campaign groups
By Chris Cooke | Published on Wednesday 20 April 2022
Three US organisations that campaign for women’s rights and gender equality have filed an amicus brief in support of Kesha as part of her ongoing defamation battle with producer Dr Luke. They argue that recent changes to free speech laws in New York state should be applied to the Dr Luke v Kesha litigation, even though it pre-dates the passing of those new rules.
Luke’s defamation claim against Kesha is all that remains of a wider legal battle between the two former collaborators, which began when Kesha accused Luke of rape. He denies those allegations and – arguing that Kesha’s claims have negatively impacted on his career – sued for defamation.
In 2020, as that legal case slowly worked its way through the system, the judge overseeing the proceedings ruled that Luke – as someone who mainly works behind the scenes in the music industry – was not a ‘public figure’. That was important because, under New York law, that decision has an impact on what needs to be proven in Luke’s defamation case.
If the producer is deemed a public figure, not only does he need to prove that Kesha’s rape claims are untrue, but also that they were made “with actual malice”. But, as he is not a public figure, he only need prove the former.
However, also in 2020, New York state passed some new anti-SLAPP laws. These are laws designed to protect free speech by targeting what are known as ‘strategic lawsuits against public participation’, basically frivolous litigation that mainly aims to shut people up, rather than actually right any alleged wrong in court.
Under the new anti-SLAPP laws, in defamation cases in New York the “actual malice” requirement can also apply when it’s a non-public figure pursuing the litigation if the allegedly defamatory statement relates to issues of public concern. Those new rules would also mean that Kesha could seek damages from Luke if her allegations were proven in court.
Once Kesha’s legal team brought up the new anti-SLAPP laws the big question was whether or not they should be applied retroactively so that they impact on a case that was originally filed long before the new rules were in force. Some have argued that it’s not fair to put new obligations onto a plaintiff already in the middle of pursuing a case, because that person couldn’t have foreseen such additional obligations when they first made their decision to go legal.
However, the judge overseeing the case decided that, despite those concerns, the new anti-SLAPP laws should nevertheless apply to the Dr Luke v Kesha dispute, increasing Luke’s burden of proof and opening him up to a possible damages claim.
The Luke side appealed that particular decision, and in March the New York appeals court ruled that the new anti-SLAPP rules should not, in fact, be applied to here, concluding that the new anti-SLAPP laws “did not specify that the new legislation was to be applied retroactively”, and therefore it shouldn’t be.
In their submission to the New York courts, campaigning groups Legal Momentum, Equal Rights Advocates and the National Women’s Law Center all argue that the lower court judge got in right on this point, and that Kesha should be able to rely on the new anti-SLAPP rules.
Law-makers in New York were responding to a real need with the new laws, the three groups say, in particular an increasing trend of alleged abusers hiring lawyers in a bid to silence those who accuse them of abuse. “When the abusers have money to hire lawyers, that retaliation often comes in the form of turning the law that is supposed to protect survivors into the instrument to torment and threaten”, they write in their new filing.
“Retaliatory litigation by abusers has grown drastically, motivating the legislature to amend the anti-SLAPP law”, they go on. “Sexual assault is already drastically underreported, as survivors fear disbelief or punishment for speaking up – an often-founded result”.
As for the New York appeals court’s decision to not apply the new laws retrospectively, they add that that decision “holds that the [New York] legislature meant to fix this ‘broken system’ only for those who happened to be sued after the amendments’ effective date – and did not intend to help the very people whose plight it cited as the reason for amending the law, since they had already been sued”.
In making this decision, they also state, the appeals court “departed from a substantial consensus in trial courts across the state and federal courts applying New York law that the statute was intended to apply at least to pending cases continued after its effective date”.
It remains to be seen if support like this has any impact on the ongoing Dr Luke v Kesha battle. In another recent development in the case, the Kesha side was told earlier this month that they can’t utilise what has been described as key evidence when the litigation gets properly to court.
That evidence consists of handwritten notes made by a lawyer in 2006 that record comments made by Kesha at the time to the effect that, in 2005, immediately before the alleged rape took place, Luke had given her a pill to help her “feel better” but which, in fact, caused her to black out.
Kesha’s legal team want to use the notes in court because, they say, they dispute a claim made by the Luke side that it was only in 2013 – years after the alleged assault – that Kesha started claiming that Luke had drugged her back in 2005.
Those notes only came to light very late in the day as the Dr Luke v Kesha case went through the motions, after an already extensive discovery period. To that end the court considering the case last year said they can’t be relied upon at trial, and earlier this month an appeals court upheld that decision.
