Assembly committee finally hears opposition to bill that would weaken state’s anti-SLAPP law

A bill to drastically alter Nevada’s strong anti-SLAPP law (Strategic Lawsuit Against Public Participation) breezed through state Senate where never was heard a disparaging word. The only testimony in the Senate Judiciary Committee was from a California attorney who helped draft the bill on behalf of Wynn Resorts, whose owner over the years has filed a few defamation suits against those who commented about him in a manner he did not like.

This morning the Assembly

Marc Randazza

heard nearly three hours of testimony for and against Senate Bill 444 — previously discussed here and here.

That aforementioned California attorney, Mitchell Langberg, and Senate Judiciary Chair Greg Brower said the bill restores balance to state anti-SLAPP law because a 2013 revision went too far in favor of defendants, and now those who have been damaged by defamatory comments have too great a burden to prove their case and face crippling court costs and attorney fees if they fail to show there is clear and convincing evidence in their favor. They argued for SB444’s standard of proof, which requires only prima facia evidence.

Brower accused those who now come out in opposition to the bill of using exaggerated rhetoric. He singled out a Las Vegas newspaper editorial this week that said: “SB444 would amend Nevada’s anti-SLAPP law by erasing the provision that provides defendants with penalty compensation; by shifting the burden of proof to defendants and requiring them to show a plaintiff’s claims are false; and by giving plaintiffs more time for discovery, which would ensure that claims take longer to litigate and are capable of bankrupting defendants.”

Brower denied the bill shifts the burden, though it does change the criteria for plaintiffs from clear and convincing to only prima facia.

The bill does include “limited discovery,” which one committee member noted can be quite expensive. The bill still allows a successful defendant to recover costs, but it would repeal a section that allows $10,000 in damages to a successful defendant.

Langberg at one point seemed to imply that the only recourse for a person who had been falsely accused — in an Internet business review for example — was vindication by a jury. Can’t people effectively counter false speech with truthful speech? And are people so gullible that they really believe whatever salacious slander they read on the Internet?

Langberg made a point of noting that the Nevada Constitution guarantees freedom of speech but also says people are responsible for the abuse of that right.

Article 1, Section 9 says:

“Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the Jury; and if it shall appear to the Jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted or exonerated.”

 Truth is a defense, but SB444 deletes a section of the current law that declares immune from litigation a communication “which is truthful or is made without knowledge of its falsehood.”

Both Trevor Hayes, a former Review-Journal business writer and now an attorney representing the Nevada Press Association, and John L. Smith, a longtime R-J columnist and book author, both said the proposed change to the anti-SLAPP law could have a chilling effort on reporting and commentary across all media. Hayes noted that newspapers today are far less profitable and a major consideration about publishing a story would be whether it could cost the paper hundreds of thousands of dollars in litigation cost.

Attorney Marc Randazza, who helped draft the current law, countered SB444 proponents who said no other state has such a strong anti-SLAPP law by saying states such as Ohio, Pennsylvania and Florida are considering adopting statutes similar to Nevada’s. He said he would have no problem acting as an attorney for a person who believes he or she has been defamed, desite Nevada’s strong anti-SLAPP law, because he does his homework and makes sure he has the evidence.

“Frankly, I do get calls, frequently, from people who ask me, ‘Won’t just file it? I know we don’t have much chance of winning, but we’ll drag these guys into discovery and they don’t want that,'” Randazza said. “When that happens I do hear the cash register ringing in my ears. And I think I could keep this case going for 18 months or so. I don’t use my law license that way. I won’t do it, because I believe in freedom of expression and I don’t believe in bullying people with lawsuits designed to suppress their First Amendment rights.”

One witness who said he writes about online poker said he would move to Texas if SB444 passes rather than face the risk of litigation.

Others said companies have moved to Nevada because of its free speech protections embodied in law.

The committee, chaired by Republican Ira Hansen, a former columnist for the Sparks Tribune, was adjourned without taking a vote.

Here is testimony by columnist Smith:

Attorney Allen Lichtenstein, formerly with the ACLU, is on Smith’s left and also testified against the bill. Though the suit against Smith was dismissed, he was not awarded costs and fees.

The hearing on SB444 can be seen online. It begins 30 minutes into the meeting.