Zeitlin v. Cohan

Court: New York Supreme Court, Appellate Division — First Department

Date Filed: April 21, 2023

Background: In 2020, the nonprofit investigative news outlet ProPublica published a story by freelance journalist William Cohan that described how Jide Zeitlin rose from a modest upbringing in Nigeria to become one of only five Black Fortune 500 CEOs before allegations of an extramarital affair derailed his career. Published in summer 2020, when the #MeToo and Black Lives Matter movements were driving a national discussion, the article raised important questions regarding when corporate leaders should face professional consequences due to personal relationships, and the lack of racial diversity at the top of major U.S. corporations.

Zeitlin sued Cohan for defamation in 2021. Cohan moved to dismiss the suit under New York’s amended anti-SLAPP law, one of many state laws that are intended to prevent people from using frivolous lawsuits to intimidate people who are exercising their First Amendment rights.

The 2020 amendments to New York’s law expanded its protections for defendants facing meritless lawsuits arising out of constitutionally protected speech about matters of interest and concern to the public. In order for defamation plaintiffs to fend off a motion to dismiss a suit challenging speech on an issue of public interest, they must allege facts that, if true, would constitute clear and convincing evidence that the speaker acted with “actual malice,” or, in other words, that the defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

The trial court granted Cohan’s motion to dismiss, finding that the article concerned an issue of public interest and that Zeitlin was therefore required — but failed — to clearly and convincingly plead that Cohan published the article with actual malice.

Zeitlin then appealed to the New York Appellate Division, First Department, arguing that the article did not concern an issue of public interest and that the trial court erred in requiring him to present clear and convincing evidence of actual malice at the motion-to-dismiss stage.

Our Position: The appeals court should affirm the trial court’s ruling.

• The amended anti-SLAPP law defines “issue of public interest” in a broad, speech-protective manner that encompasses the ProPublica article.
• New York’s anti-SLAPP law requires the dismissal of a SLAPP unless the plaintiff clearly and convincingly pleads actual malice.
• Together, the amended anti-SLAPP law’s broad scope and actual malice standard are essential to protecting the news media’s ability to inform the public about matters of public concern.

Quote: “Providing anti-SLAPP protection for speech like the Article is essential to ensuring that journalists — including, especially, freelancers like Cohan and those at nonprofit and local news outlets — are not deterred from publishing reporting that drives public discourse, social movements, and reforms.”