On Wednesday, Kesha Rose Sebert scored her biggest victory thus far in the seven-year-long legal fight over whether she defamed Lukasz “Dr. Luke” Gottwald by publicly accusing the star producer of rape. When the case gets to trial, perhaps later this year, Dr. Luke will now have to prove by clear and convincing evidence actual malice on Kesha’s part. The singer will also be allowed to seek compensatory and punitive damages plus attorneys’ fees and costs for the lengthy battle.

A decision today by New York Supreme Court Justice Jennifer Schecter that the state’s recently enacted SLAPP statute applies in this long-running case is so potentially significant that during a hearing, Dr. Luke’s attorney Christine Lepera nodded to the evidentiary burden that she had relied upon when bringing this case in the first place. She suggested the substantive rights of her client were being violated while expressing confidence of prevailing regardless.

Back in February 2020, Dr. Luke scored many advantages on summary judgment, including the judge’s conclusion that he wasn’t a public figure and that the singer published a false statement when she texted Lady Gaga that he had also raped Katy Perry.

And on appeal, a New York appeals court stunned many legal observers and press advocates by agreeing that even though Dr. Luke is world famous and has worked with the industry’s biggest musicians, he’s a private figure who needn’t go so far as to have to demonstrate that Kesha was grossly irresponsible with her public accusation.

But what has changed the course of this case is the state of New York’s recently passed law intended to protect free speech from frivolous litigation. Thanks to the anti-SLAPP statute, there are now situations where private figures have to demonstrate actual malice to prevail. That would be in instances where free speech is exercised with respect to issues of public concern.

During oral arguments today, the big question was whether New York’s new law applies retroactively. That was what U.S. District Court Judge Jed Rakoff concluded back in December in Sarah Palin’s ongoing defamation fight against The New York Times, and since then, other judges have followed suit in at least eight cases.

Palin is leader of pack, and the rest get it wrong,” argued Lepera, also arguing there’s nothing in the SLAPP law that explicitly provides for retroactive application and that Dr. Luke’s substantive rights would be impacted.

But Justice Schecter pointed to legislative intent that the law would be immediate, that it was urgent, and applying some appellate precedent, that meant retroactive application.

In short, to prevail on his defamation claim at trial, Dr. Luke will now need to show more than just a preponderance of evidence that there was no rape; he’ll need to show that the pop star, who alleges she was drugged before the rape, had knowledge of falsity or recklessly disregarded the truth.

Schecter is also allowing Kesha to advance a counterclaim for the first time in this case. To further discourage meritless cases, the anti-SLAPP law allows for fee-shifting in instances where plaintiffs fail to show a substantial basis in fact and law for litigation.

During the hearing, Lepera argued that her client’s success during the long-running case already showed there was a substantial basis in fact and law, and moreover, that such a determination was a question for the judge, not the jury.

In response, Leah Godesky, the attorney for Kesha, argued that the counterclaim had merit, adding, “As everyone knows from [the] beginning, this is a he-said-she-said case where the evidentiary burden matters.”

Schecter said that after trial there would still be an assessment of who prevailed, and the nature of that victory, but saw no reason not to allow an amended counterclaim at this juncture.

After the decision, Dr. Luke’s attorneys issued this statement: “Today’s court hearing was only about a technical legal issue: the burden of proof at trial. Dr. Luke would have filed this case regardless of the burden of proof. At trial, Dr. Luke will prove to the jury, as he has always maintained, that Kesha spread a vicious lie to get out of her contracts.  Kesha refuses to make any claim against Luke that she had would have the burden of proof on—because she knows she would lose and that she is lying.”

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