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)


Why does there always have to be a law?

Uber connects drivers and riders.

What’s that old saw? When the only tool you have is a hammer, every problem is a nail.

Likewise, when we send people to Carson City and call them lawmakers, they think everything has to have a law.

If I pick my phone and call a friend to ask for a lift to the store and say I’ll give him a few bucks to cover gasoline and his time, do I need the nanny state to hold my hand and make sure my friend has adequate insurance and isn’t a criminal?

The same should go for picking up my cell phone and pressing an app, such as Uber, and asking the same of a stranger.

No, Senate Bill 439 proposed 12 pages of regulations on so-called transportation network companies to put Uber and similar businesses on a more even footing with taxi and limousine companies.

In advocating for the bill, Republican Sen. James Settelmeyer strangely argued that new technology should not be stifled to protect the legacy technology — saying candlemakers shouldn’t be able to use the law to block the use of electric lightbulbs or encyclopedia publishers to block wikipedia.

“I think that it is wrong of us to consider the concept of preserving the status quo by stifling this technology,” Settelmeyer argued Wednesday on the Senate floor. “The people, the citizens of the state of Nevada, have a thirst for technology, they’re looking for this. They’re looking for the opportunity to utilize this technology, but in my opinion it needs regulation.”

Motions by Democrats to make the bill even more onerous were rejected by the Senate along party line votes.

The final Senate vote on the bill was all 11 Republicans in favor and all 10 Democrats against, but because the bill also included a 25-cent per ride fee for the highway fund it needed a 14-vote supermajority to pass. The bill’s failure means firms like Uber are blocked from operating in Nevada under current law and court rulings.

The debate got a bit acrimonious when one Democrat objected to a Republican applauding Settelmeyer’s speech. The word disrespect was bandied about in the subsequent discussion.

As with taxes, the difference between Republicans and Democrats on the issue of regulation is merely a matter of degree — harsh or harsher.

You may view the entire debate online. The SB439 part starts at about 2:06:00 of the session.


Editorial: Let local governments opt out of collective bargaining

While it seems most of the legislation coursing through the halls of the Legislature in Carson City seeks to tap deeper into taxpayers’ wallets, one might actually reduce the cost of local government by allowing local counties, cities and school boards to end collective bargaining with public employee unions.

Assembly Bill 280, sponsored by Assemblyman Erven Nelson, a Las Vegas Republican, authorizes local governments to choose not to negotiate with an employee union and ends the requirement for binding arbitration that has proven so costly to many local governments and school districts.

Nelson testified recently about his bill, saying it will allow elected officials to regain control over the cost of government by allowing them to set the rate of salaries and benefits during public meetings in front of the taxpayers, instead of in secret negotiations. He noted this is how the state government works, because it does not allow its employees to unionize.

If a local government does agree to collective bargaining, AB280 would not allow any pay or benefit increases after a contract expires and before a new agreement is finalized.

Erven Nelson

Nelson pointed out that during the recent recession a number of government employees lost their jobs and services to taxpayers were cut because unions would not agree to reductions in pay and benefits. He added union requirements that layoffs be based on seniority instead of merit often resulted in better and lower paid employees being laid off.

“By providing another alternative to the governing body, jobs can be saved and services to the public can be retained,” Nelson testified.

“We should not be talking about raising taxes so long as government employees make more than the taxpayers who fund their salaries.” Nelson continued. “Government spending would fall by approximately $300 per resident if Nevada makes collective bargaining optional for local government employees and if they implement those changes. Limiting collective bargaining has worked well for Wisconsin. The state closed its budget deficit and realized enough savings to cut taxes as well.”

Nye County Commissioner Dan Schinhofen also testified in favor of the bill, saying his county has 400 public employee union members whose salaries and benefits have become unsustainable. “In the past 10 years, the county’s assessed valuation has declined by nearly $600 million and the opportunity to generate revenue from other sources have been either insignificant or not available to us,” Schinhofen said. Today total employee compensation consumes 80 percent of the county budget.

He said AB280 would allow the county to regain control of its spending on services for its 48,000 residents.

Former Storey County Commissioner Greg “Bum” Hess argued that in small counties with volatile revenue streams the governing body needs flexibility to set public employee pay rather than be bound by a collective bargaining contract.

“This bill, as you know, would not outlaw collective bargaining; it would merely empower each local government body to choose for itself whether or not to engage in the collective-bargaining process,” testified Nevada Policy Research Institute President Andy Matthews. “This is important because it would give citizens a much stronger voice in how local fiscal affairs are conducted. If the residents of Elko or Reno or Las Vegas think that their local government employees ought to be able to negotiate under collective bargaining laws, then they can vote to elect officials who will implement that policy. Residents who feel otherwise can vote for candidates who pledge to do the opposite.”

Of course, a number of public employee union representatives testified against the bill, saying it would make it more difficult for local governments to recruit quality employees. They also said unions have been willing to reopen contracts and negotiate pay reductions.

What is being proposed for the cities, counties and school boards currently works for the state, which is able to hire suitable employees at a pay scale with which both employer and employee agree.

We fully support and call for passage of AB280 to allow local governments to take control of their budgets for the benefit of taxpayers and not be forced to cede control of budgets to out-of-state arbitrators who don’t have to live with the result of their decisions.

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.

A reading recommendation from the master of the twist ending

Now for something completely different.

After finishing Larry McMurtry’s “Dad Man’s Walk” — a depressing and grueling tale of survival, by damned few, and happenstance on the plains of West Texas and New Mexico, focusing on the beginnings of the protagonists of “Lonesome Dove” — I reached to the top shelf and fetched down a book club version of the “Tales of O. Henry” for a little light reading.

O. Henry was known for his short stories with twist endings. Such as “The Gift of the Magi,” in which the wife sells her long hair to buy a chain for her husband’s gold watch and he sells the watch to buy combs for her hair, and “The Ransom of Red Chief,” in which kidnappers pay the parents of a wild child to take him back.

O. Henry came of age in Austin, Texas, and started writing, continuing during a stint in prison for embezzlement and after he moved to New York City.

But today I’m here to recommend another little gem too often overlooked, “Hearts and Crosses” — “Our sign — to love and to suffer — that’s what they mean,” says the wife to her husband about the symbol she sends out on the ranch, a cross inside a heart, to signal her Texas ranch foreman husband to visit her, even though her father, who owns the ranch, has threatened to turn her husband into a colander.

The story neatly turns in upon itself and explores relationships, comparing them to that of royalty. Of course, there is a touching twist ending. Follow the link above to read the piece. It is a little over 4,000 words, so it is like reading five newspaper columns.




Newspaper column: Democrat candidate would pick up where Reid leaves off

Former Attorney General Catherine Cortez Masto is imminently qualified to step right into the shoes of Sen. Harry Reid. This past week she became the first Democrat to announce her candidacy for Reid’s seat and he immediately endorsed her.

For example, in March 2010, Republican Gov. Jim Gibbons sent Cortez Masto a letter directing her to file suit challenging the constitutionality of ObamaCare. She fired back a letter refusing to do so.

She wrote: “The Attorney General is the State’s chief legal officer. Like you I have a responsibility to represent the State’s interests. As such, I must be satisfied in my own professional judgment that the case has merit and should be filed.”

Not exactly.

The Nevada Constitution says: “The Secretary of State, State Treasurer, State Controller, Attorney General, and Superintendent of public instruction shall perform such other duties as may be prescribed by law.”

Catherine Cortez Masto (AP photo)

Nevada Revised Statute 228 prescribes: “Whenever the Governor directs or when, in the opinion of the Attorney General, to protect and secure the interest of the State it is necessary that a suit be commenced or defended in any federal or state court, the Attorney General shall commence the action or make the defense.”

The governor directed. She refused.

Another section of NRS 228 reads: “If the Attorney General neglects or refuses to perform any of the duties required of him or her by law, the Attorney General is guilty of a misdemeanor or is subject to removal from office.”

Instead, attorney Mark Hutchison, now the lieutenant governor, was hired pro bono to represent Nevada in the Obamacare litigation. He is touted as a potential Republican candidate for Reid’s seat.

An attorney general who refuses to follow the law is qualified to succeed Reid, who has been known to flout a law or two over the years.

Then there was the criminal indictment by Cortez Masto against then-state Treasurer and later-Lt. Gov. Brian Krolicki over alleged mismanagement of a college savings program. No funds were missing but the AG claimed Krolicki was not following state budgeting rules.

A judge dismissed the charges completely and Cortez Masto did not appeal.

While the case was pending an invitation to a fundraiser for a Democratic opponent of Krolicki for lieutenant governor listed a sponsor of the event as Paul Masto, husband of the attorney general. She denied any wrongdoing and the event was canceled.

Nevada State Republican Party Chairman Chris Comfort said at the time, “Catherine Cortez Masto and her friends are so arrogant that they change a few words on an invite and pretend this is no longer about Catherine Cortez Masto. The event is hosted by Catherine’s husband and Catherine’s top donors, and it underscores her personal and partisan crusade to destroy Brian Krolicki.”

Partisanship — another qualification to succeed Reid.

Krolicki also is said to be considering seeking the Republican nomination for Reid’s seat. He was contemplating running against Reid in 2010 before he was indicted.

In announcing her candidacy Cortez Masto also announced her resignation as executive vice chancellor of the Nevada System of Higher Education, a job to which she was appointed only three months ago after being term limited as attorney general.

She was appointed without benefit of a national search to a job that had been vacant for five years and was to be paid a salary of $215,000, far more than her pay as an elected official, even though she had no experience in higher education.

While serving as executive vice chancellor, Cortez Masto testified before a legislative panel against a bill that would allow concealed carry permit holders to carry their weapons on college campuses. She testified that guns on campus would have a chilling effect on academic freedom.

Another qualification to succeed Reid, who claims to support the Second Amendment, though he votes consistently to curb those rights.

Even though the Nevada Constitution prohibits the state donating or loaning money to any company, Cortez Masto opined otherwise when the governor and lawmakers wanted to dole out money to various companies through a so-called Catalyst Fund.

On three occasions state officials asked the voters to amend the Constitution to make subsidies to companies legal. It was defeated all three times.

Cortez Masto opined: “The Nevada Constitution does not prohibit the State from disbursing Catalyst Fund money to regional development authorities …”

Some lawyers might call that money laundering. That’s how Reid doles out favors to his cronies, too.

Las Vegas City Councilman Bob Beers is the only announced Republican candidate for the seat.

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.

I have seen the future and it ain’t pretty for newspaper reporters

Narrative Science image

And you thought the Terminator series of movies was scary?

We got an email overnight with a sports story detailing how our grandson fared in his Little League baseball game. It used all the usual sports jargon, such as how he “came up big at the dish and on the rubber.” That’s batting and pitching to the uninitiated.

But the most interesting thing about the piece was the “byline.”

At the end was this disclaimer:

“Powered by Narrative Science and GameChanger Media. Copyright 2015. All rights reserved.” Any reuse or republication of this story must include the preceding attribution.

Yes, the coaches enter the box score electronically and a computer generates a sports story.

It works with other sports as well. Here is an example from a 2014 basketball game:

Mason Plumlee scored 21 points and grabbed 15 rebounds to lift No. 2 Duke to a 73-68 win over No. 4 Ohio State on Wednesday at Cameron Indoor Stadium in Durham. Ohio State (4-1) struggled shooting the ball in the game.

The Buckeyes made 70 percent of their free throws (16-of-23) and they shot 34 percent (23-of-67) from the field. Duke (7-0) shot 20-of-27 from the free throw line. The Blue Devils also got double-digit games from Quinn Cook, who scored 12, Ryan Kelly, who scored 15, and Rasheed Sulaimon, who scored 17. Amir Williams scored four points and grabbed 10 rebounds for Ohio State in the loss.

The Buckeyes got double-digit efforts from Deshaun Thomas, who scored 16 and Lenzelle Smith, Jr. and Aaron Craft, who each scored 11.

Several years ago, journalism and computer science students at Northwestern University figured out how to generate game stories based on box scores. It was called StatsMonkey. Soon thereafter Narrative Science was born.

It couldn’t tell you if the out was a leaping catch that prevented a home run, but all the basic info is there. Who won and how. No typos. Fewer bad puns.

It works with other data, too. According to one news account, the company produces daily computer-generated earnings previews for a number of firms.

So, business reporter, don’t go ribbing the guys over in the toy department — as the sports desk is often called — because the machine might replace you, too.

Considering the depth of inquisitiveness on a number of other beats, I’d wager a machine with voice recognition and the right algorithms might cover boring city council meetings and political speeches and legislative hearings about as well.

Have the new owners of the Las Vegas newspaper heard of this yet? Or are they already using it? The company claims to have several media clients but will not reveal who they are.

Might the next Pulitzer Prize be won by Hal?

Video by The Young Turks narrates the apocalypse: