Wolff v. Trump and the preemptive anti-SLAPP gambit: A tale of two statutes

In October 2025, First Lady Melania Trump's counsel sent journalist and author Michael Wolff a demand letter invoking Florida Statute § 770.01, the mandatory pre-suit notice required before commencing a libel action in Florida. The letter demanded that Wolff retract statements he had made about Melania Trump's alleged ties to Jeffrey Epstein and threatened a lawsuit exceeding $1 billion in damages if he failed to comply within six days.

Wolff did not retract. Instead, he sued first.

On Oct. 21, 2025, Wolff filed a verified complaint in New York Supreme Court, seeking a declaratory judgment that his statements were not actionable as defamation and asserting an affirmative claim for damages under New York's anti-SLAPP law, N.Y. Civil Rights Law §§ 70-a and 76-a. Wolff argues that Melania Trump's pre-litigation threat letter itself constitutes a "claim" within the meaning of the anti-SLAPP statute, entitling him to a declaration of rights, attorneys' fees and damages. The complaint also indicates Wolff's intent to engage in discovery and exercise the subpoena power "fully and expeditiously" by issuing subpoenas "to those who frequented or who were part of Epstein's circle, including Mr. Trump."

Wolff's legal theory: The § 770.01 Letter as a SLAPP "Claim"

The linchpin of Wolff's theory is a textual argument about what constitutes a "claim" under New York's anti-SLAPP law.

N.Y. Civil Rights Law §70-a entitles "[a] defendant in an action involving public petition and participation" to seek early dismissal of a case against him and recover costs, fees, and damages upon a sufficient showing. Section 76-a(1)(a) defines an "action involving public petition and participation" as a claim based upon, inter alia, "any communication in a place open to the public or in a public forum in connection with an issue of public interest." Section 76-a(1)(b), in turn, states that the term "'[c]laim' includes any lawsuit, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief."

Wolff argues that Melania Trump's Florida § 770.01 demand letter was not merely an informal threat but rather the statutory initiation of a SLAPP "claim." Since a defamation lawsuit must be preceded by a § 770.01 notice, Wolff's theory goes, Melania Trump's letter was a legally required commencement of process, one that effectively placed Wolff in the position of a "libel defendant" the moment the letter was served. As such, and because Melania Trump's threats against Wolff stemmed from his public speech on a matter of public interest (e.g., her alleged ties to Epstein), her letter was sufficient to trigger § 70-a protections.

The argument is creative and, if accepted by a court, the result would be unprecedented, as no prior New York case has addressed an affirmative cause of action being filed under New York's anti-SLAPP statute by a party initiating the action. Arguably, Wolff's theory is at odds with the text of § 70-a (1), which states that the anti-SLAPP procedure is available to "a defendant" as a remedy for the improper use of litigation by a "person who commenced" an "action." The theory also seems inconsistent with the statute's definition of "claim" as a "judicial pleading or filing."

On the other hand, a court could be persuaded by Wolff's textual argument that the definition of "claim" is left permissively open-ended, since §76-a(1)(b) states that a claim "includes" --but perhaps is not limited to--a formal legal proceeding. Wolff could also argue that by enabling a SLAPP victim to "maintain an action" (§ 70-a (1)), affirmative relief is contemplated. On a policy level, a court could find that a pre-litigation demand letter has a similar "chilling effect" as litigation and thus requires the same protection. How a New York court will rule remains an open question to be watched closely.

Could the same gambit work in California?

The short answer is no--though the analysis requires unpacking an important distinction.

California courts have, in limited circumstances, permitted non-defendant litigants to invoke the protections of the state's anti-SLAPP statute, Code of Civil Procedure § 425.16. In Iloh v. Regents of the University of California, 94 Cal. App. 5th 947, a mandamus proceeding filed against UC Irvine to prevent disclosure of records pursuant to a Public Records Act request, the Center for Scientific Integrity (CSI) was added as a real party in interest because it had sought the records. The Court of Appeal held that although there was no "cause of action" asserted against CSI, it was a "person" qualified to file an anti-SLAPP motion because its rights would be impacted by the litigation's outcome.

That holding, however, operates within an important reality: § 425.16 is designed exclusively as a defensive mechanism. The statute permits a "special motion to strike" a complaint; it does not contemplate the filing of a separate "action, claim, cross claim or counterclaim," as New York's statute does. Section 425.16 refers consistently to "plaintiff" and "defendant" occupying unique and distinct roles within the procedural mechanism. The statute is thus unavailable for use as a preemptive strike before any lawsuit has been filed.

California cases illustrate this point. In Morris Cerullo World Evangelism v. Newport Harbor Offices & Marina, LLC, 67 Cal. App. 5th 1149, the court held that an anti-SLAPP motion cannot be directed at affirmative defenses, which do not seek affirmative relief and thus are not "causes of action" brought by plaintiffs, cross-complainants, or petitioners. Similarly, in Medical Marijuana, Inc. v. ProjectCBD.com, 6 Cal. App. 5th 602, the court emphasized that the statute is intended to strike claims filed against defendants, an interpretation that aligns with the text discussing "a cause of action against a person."

The critical distinction between Iloh and the Wolff scenario is therefore structural. Iloh expanded the class of who may invoke the anti-SLAPP statute defensively; it did not expand the posture in which the statute may be invoked. A California speaker facing a § 770.01-style demand letter--threatening but not yet constituting a filed lawsuit--would have no available anti-SLAPP vehicle, however credible the SLAPP threat might be.

Conclusion

Wolff v. Trump presents a novel question: whether a statutory pre-litigation demand letter can itself constitute a "claim" sufficient to trigger anti-SLAPP protections under New York law. Wolff's textual argument is colorable, and the breadth of New York's 2020 anti-SLAPP amendments suggests the legislature intended expansive protections for speakers on matters of public concern. Whether that expansiveness reaches pre-suit demand letters is a question the courts have not yet answered.

California practitioners should note, however, that whatever the New York courts ultimately decide, the same theory would not translate westward. California's anti-SLAPP mechanism remains exclusively in a defendant's toolbox. A speaker in Wolff's position under California law would need to wait to be sued--and respond defensively--before the statute's protections could be invoked.