In 2013 the Nevada Legislature passed a strong anti-SLAPP law that was called the gold standard of such laws.
SLAPP stands for Strategic Lawsuit Against Public Participation and is generally defined as vexatious litigation solely designed to squelch free speech under the burden of expensive, tedious and lengthy court wrangling.
But Senate Bill 444 seeks to pull its teeth.
The bill was proffered by Wynn Resorts, whose owner has filed a few defamation suits over the years. It has already passed out of the Senate Judiciary Committee and the full Senate unanimously.
I wrote about the anti-SLAPP law in 2010, when a choir teacher at the Churchill County High School sued a student journalist at the school’s student newspaper for writing an article saying parents were upset that she withheld certain students’ audition tapes from a state musical competition. The case was thrown out with the judge citing the anti-SLAPP statute in effect at the time.
Today Review-Journal columnist John L. Smith and capital bureau reporter Sean Whaley both wrote about the SB444, scooping their former editor who filed his newspaper column on this bill over the week and which will be printed this week and a version posted here.
Mitchell Langberg, a Wynn attorney, testified in favor of the bill on April 6. There was no opposition. Langberg said the 2013 version of the law was too broad and too limiting on plaintiffs, such as his client, who lost a defamation case in California because of its anti-SLAPP law, though Wynn did win a defamation suit against the producer of the “Girls Gone Wild” videos.
Wynn also lost a 2001 defamation suit against columnist Smith, but Smith was not awarded costs and attorney fees, which are to be awarded under the current anti-SLAPP law.
SB444 eviscerates the level of proof a plaintiff must show to have the anti-SLAPP motion dismissed. Currently a plaintiff must show “clear and convincing evidence” of a probability prevailing in the suit. SB444 reduces this to “prima facie evidence,” which means the allegations are presumed to be true until proven false, completely shifting the burden of proof.
Marc Randazza, who helped draft the 2013 anti-SLAPP update, calls SB444 “a paragon of sleaze. It starts off with preamble statements that make it seem like it is there to protect freedom of expression, but once you read it, you realize that whoever drafted this must have done so with the clear intent of destroying the Anti-SLAPP law.”
Whaley quoted Barry Smith, executive director of the Nevada Press Association, as saying, “Anti-SLAPP statutes are important to protect free speech, because sometimes people sue just to silence their critics. After 2013, Nevada had one of the strongest anti-SLAPP laws in the country. SB444 would weaken it substantially.”
He quoted his newspaper’s in-house attorney, Mark Hinueber, as saying, “SB 444 seems to be a solution in search of a problem that doesn’t exist. The current statute, as amended in the last legislative session, balances competing interests and should not be altered.”
SB444 is scheduled to be heard by the Assembly Judiciary Committee Friday morning. Perhaps there will be opposition this time.
Look for my column on this topic later in the week.
Here is Langberg’s testimony: