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

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.

 

 

 

 

Editorial: If lawmakers can’t take the heat, get out of the kitchen

Lawmakers in Carson City are attempting to play Pontius Pilate and wash their hands of one of their responsibilities.

Assembly Joint Resolution No. 10 proposes to revise the Nevada Constitution and set up a Citizens’ Commission on Salaries for Certain Elected Officers that would have the power to determine the salaries for lawmakers, statewide constitutional officers and judges. It also would change the current practice of paying lawmakers for only the first 60 days of the biennial 120-day regular sessions and the first 20 days of a special session. AJR10 would require compensation for each day of regular and special sessions.AJR10

The commission would be made up of two members appointed by the speaker of the Assembly, two appointed by the majority leader of the Senate, two named by the governor and one by the chief justice of the Supreme Court.

The commission would be allowed to increase salaries during an elected official’s term of office, but not diminish it. It would not be permitted to increase or decrease salaries by more than 15 percent.

Now, what makes us doubt that such a duly appointed panel would ever decrease the salaries for the very people who appointed them to such an august body?

Resolution sponsor Republican Assemblywoman Vicki Dooling testified (at 49 minutes in the hearing) that compensation has been a concern of lawmakers for 30 years and that an advisory panel on salaries was created in the mid-1990s, but it now has no members and is inactive. She noted former Gov. Kenny Guinn created a compensation task force to “ensure that highly qualified persons can continue to serve our citizens.”

That task force was to compare the duties and pay of public officials with those in the private sector. She did not say what the results were.

Dooling pointed out that April 2 was the 60th day of the session and lawmakers do not get a salary thereafter, though they do get reimbursed for expenses. She said it is difficult for officials to have a serious and fact-based discussion about their own compensation, because too many interest groups criticize and bring pressure. “They regard this as self-serving and fail to recognize the amount of time and effort it takes to serve our fellow citizens,” she said.

Republican Assemblyman David Gardner also testified for AJR10. He said about half the states have such commissions to establish salaries. “The main idea is to say we as legislators should not be setting our own salaries,” he said, adding, “I agree with Assemblywoman Dooling, it’s always awkward to be saying, ‘I want to vote myself a raise.’”

Both Dooling and Gardner were elected in November and presumably knew what the salary would be.

Perhaps they recall what happened in 1989 when lawmakers voted to increase their pensions by 300 percent — from $25 a month per year of service to $100 a month per year of service. That was a pittance compared to potential 15 percent pay raises.

But the voters were outraged and Gov. Bob Miller called lawmakers into a special session at which the pension hike was repealed unanimously in a two-hour session.

”It’s over,” Gov. Miller said upon signing the repeal. ”The action is in the best interests of the taxpayers of the state because the possibility of future payments at that inflated 300 percent level no longer exists.”

Miller had vetoed the original pension bill, but legislators overrode the veto.

Since it is an amendment of the Constitution, AJR10 would have to be voted on by the citizens. But there is no need to go that far. Lawmakers should have the courage to vote on salaries and let the voters decide at the next election if they deserved the pay or not.

A version of this editorial appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record.

When the newspaper gives different ‘play’ to similar political stories

Banner story on Flores announcing Democratic candidacy for Congress.

Banner story on Flores announcing Democratic candidacy for Congress.

Consistency is not the local newspaper’s forte.

As I pointed out when the Las Vegas Review-Journal displayed Hillary Clinton’s presidential candidacy on the front page but relegated the GOP candidate announcements to inside pages, once upon a time newspapers tried to balance the significance of the news with the fairness of the coverage. For example, the announcements of candidacy for elective office by the major contenders were given similar “play” in the paper whenever possible — same page in the paper and same size photos was ideal.

Today the R-J’s banner story is former Assemblywoman Lucy Flores’ announcing her bid for the Democratic nomination for the 4th Congressional District, currently held by Republican Cresent Hardy.

When state Sen. Ruben Kihuen announced his bid for the Democratic nomination, it was displayed on 2B in the next day’s paper. It also was a shorter story, too.

I suspect it is less a display of favoritism than just a lack of due diligence to fundamental principles of fairness. Who is minding the store?

And they lived obliviously ever after.

Kihuen announcement of Democratic bid for Congress was on 2B.

Kihuen announcement of Democratic bid for Congress was on 2B.

 

 

 

Newspaper column: Proposed law takes the slap out of anti-SLAPP law

Slinking quietly through the Nevada Legislature is a bill that would gut the state’s strong anti-SLAPP law that was once 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 mostly expensive.

Nevada’s anti-SLAPP law has been around for years, but it was updated in the 2013 session of the Legislature to give it more bite.

But Senate Bill 444 seeks to pull its teeth.

When the bill passed unanimously out of the Senate Judiciary Committee, Chair Greg Brower, a Republican lawyer, said the bill merely fixed some problems with the 2013 version. It has since been passed unanimously by the full Senate without so much as a lowing moan from the oxen it will gore.

There are no fingerprints on the bill. No senator is listed as a sponsor. It sprang from the skull of the Senate Judiciary Committee, full grown and dressed in a full set of armor. The bill was filed at the request of Wynn Resorts, whose owner has filed several defamation suits over the years.

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 teachers union tried to block publication of the story, calling it “inappropriate and disruptive to the teaching-learning environment,” but both the superintendent and principal approved it.

In a strongly worded ruling Judge William Rogers found the litigation utterly without merit, writing that the motion to dismiss may not be overcome “on the gossamer threads of whimsy, speculation and conjecture.”

The judge cited Nevada’s anti-SLAPP statute, which at the time stated: “If an action is brought against a person based upon a good faith communication in furtherance of the right to petition: … The person against whom the action is brought may file a special motion to dismiss …” The defendants did and the judge did.

But SB444 will make it tougher for defendants such as that student journalist.

First, it cuts the time for filing an anti-SLAPP motion from 60 to 20 days after being served with the suit, barely enough time to find a suitable lawyer up to speed on First Amendment issues.

But worse, the law 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 of prevailing in the suit. SB444 reduces this to “prima facie evidence,” completely shifting the burden of proof.

Though it may seem a subtle distinction, the phrase “good faith” has been excised from the law. The current law incorporated a concept from the Times v. Sullivan case from the civil rights era that found public officials could not sue for libel so long as there was no reckless disregard for the truth of an accusation. 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.”

The new law also repeals a section that had allowed defendants hit by a SLAPP suit up to $10,000 in damages. The chances of having to pay out $10,000 was a deterrent against frivolous lawsuits intended to gag free speech.

Another subtlety is a change in the law’s protection for matters of “public interest” to matters of “public concern.” An online blog posting about how good or bad a job a plumber did might be of public interest but is it a public concern? Could that plumber sue the blogger under the revised law but not the prior? SB444 states that concern “means any topic that concerns not only the speaker and the speaker’s audience, but the general public, and is not merely a subject of curiosity or general interest.”

There is a risk to filing an anti-SLAPP motion if one is unsuccessful. Both the current law and the proposed law allow a plaintiff who fends off an anti-SLAPP motion to be awarded costs and attorney fees, but the proposed law considerably increases the chances of the plaintiff prevailing.

There is nothing in the current law that needs to be fixed. The Assembly should derail this attempt to gag free speech.

This week Las Vegas Review-Journal columnist John L. Smith and capital bureau reporter Sean Whaley both wrote about the SB444.

The Assembly Judiciary Committee is to hear testimony on the bill Friday morning.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

Only four state senators vote against governor’s margin tax lite

Only four state senators had the gumption today to vote against the governor’s margin tax lite, which taxes businesses based on their gross receipts in the same way as the proposal on November’s ballot, which was defeated by voters by a 4-to-1 margin.

The four were Republicans Pete Giocoechea, Donald Gustavson, Scott Hammond and James Settelmeyer. That means seven Republicans and all the Democrats voted for Senate Bill 252, making the final vote 17-4. It now goes to the Assembly, where its fate is unknown.

State Treasurer Dan Schwartz and Controller Ron Knecht jointly sent out a press release calling on the Assembly to reject the bill. Press release on SB252

“To propose a tax that has been explicitly rejected by Nevada voters displays a blatant disregard for the democratic process. The Governor has called for alternatives. Those have been provided. They should be considered along with reprioritizing several proposed expenditures,” said Schwartz.

Assembly member Michele Fiore sent out an email pointing out that SB252 has 1,811 unique tax brackets based upon gross receipts. (The state Constitution states: “The Legislature shall provide by law for a uniform and equal rate of assessment and taxation …”)

She noted that the unemployment rate is still 7.1 percent in Nevada and “the last thing the Legislature should be doing is taking money out of the private sector, where it’s needed to create jobs, and transferring it to the public sector so that government can continue to spend beyond its means.”

Nevada Policy Research Institute’s Executive Vice President Victor Joecks commented:

“The voters of Nevada made clear in November that they do not want to impose a gross-receipts business tax, yet today the Senate passed a similar tax. Unlike the 17 Senators who voted in favor of SB252, Nevada voters recognized that raising taxes on businesses that are struggling or even losing money will only hurt families and parents throughout Nevada.”

Actually, as a survey reported by NPRI points out, Nevada voters apparently aren’t paying any attentionThe poll, conducted by Google Consumer Surveys in March, found 89.4 percent either did not know Sandoval supports the largest tax increase in Nevada history or mistakenly thought the governor supports keeping taxes low.

Gov. Brian Sandoval has said the so-called business license fee based on gross receipts will eventually rake in $250 million a year. The Nevada Registered Agent Association commissioned a study that says his figure is off by $65 million. NRAA Study

When Texas launched its margin tax it was expected to bring in $5.9 billion a year, but only netted $4.45 billion its first year and $4 billion the next.

Never mind that most of what Sandoval plans to spend on improving education will not work and has not worked when tried elsewhere.

Giocoechea

 

 

 

 

 

 

 

 

 

Gustavson

Hammond

Settelmeyer

Attorneys gone wild! Bill would eviscerate Nevada’s strong anti-SLAPP law

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:

 

 

What it looks like depends on where you are standing on the political spectrum

“Few people are capable of expressing with equanimity opinions which differ from the prejudices of their social environment. Most people are even incapable of forming such opinions.”

Albert Einstein

The center keeps shifting to the left.

Take as illustrative the lede story in today’s Las Vegas newspaper about politics in Carson City. It talks about ultraconservatives and extreme stances and moderate-not-liberal Republicans who want to raise taxes by $1.3 billion. This is not a criticism of the story. It is simply using the argot of the moment.

The explanation for why so many can observe the same event, see such vastly different things and remain completely unpersuaded is outlined in my general theory of political relativity, first postulated 2010.

Ira Hansen, labeled an ultraconservative. (R-J photo)

No observer is stationary. All are themselves in motion at different velocities, in different directions along the political spectrum from red to blue.

The theory goes something like this (e=mc²): The energy of one’s convictions equals the mass of one’s deductions times the speed of insight squared.

With the leftward shift of the center, people have no qualms about saying that requiring gender specific bathrooms and locker rooms and showers in elementary school is extreme.

“I didn’t realize when I was growing up that I was a horrible segregationist because boys went to the boys bathroom and girls went to the girls bathroom. We want to maintain that,” Republican Ira Hansen is quoted as saying. “It has nothing to do with the other issues opponents were bringing up.”

Things have changed.

It doesn’t require a nuclear physicist to figure it out. Just ask my son who works on the Relativistic Heavy Ion Collider at Brookhaven National Lab — it’s sort of like playing billiards with really tiny balls, only the balls don’t bounce.

Here is an example from the April 14 Investor’s Business Daily of how people at different points on the political spectrum view things.

Asked if was wrong of Hillary Clinton to use a personal email account while Secretary of State, 69 percent of Democrats said no, while 68 percent of Republicans said yes. Asked whether they were satisfied with her explanation, 74 percent of Democrats said yes, while 73 percent of Republicans said no.

Example of the split in attitudes between Democrats and Republicans (Investor's Business Daily)

Example of the split in attitudes between Democrats and Republicans (Investor’s Business Daily)