Anti-SLAPP law appears to survive, but with fix of language

In the chaos of the closing hours of the legislative session it appears the state’s anti-SLAPP law survived largely intact, but with some wording that could prevent a court from ruling it unconstitutional, as was done in Washington state recently.

The “clear and convincing evidence” language in the law was changed to:

“NRS 41.660 provides certain protections to a person against whom an action is brought, if the action is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern.

“When a plaintiff must demonstrate a probability of success of prevailing on a claim pursuant to NRS 41.660, the Legislature intends that in determining whether the plaintiff “has demonstrated with prima facie evidence a probability of prevailing on the claim” the plaintiff must meet the same burden of proof that a plaintiff has been required to meet pursuant to California’s anti-Strategic Lawsuits Against Public Participation law as of the effective date of this act.”

 

 

 

Will anti-SLAPP law be changed this session?

It is unclear whether the state’s strong anti-SLAPP law will see any changes with the obdurate Senate seemingly unwilling to agree to anything other than disembowelment.

But a ruling out of Washington state on that state’s anti-SLAPP law might prompt a compromise from the pro-anti-SLAPP law camp, I hear. (SLAPP is an acronym for strategic lawsuit against public participation.)

Like Nevada, Washington has a constitution that guarantees civil jury trials. Nevada’s states: “The right of trial by Jury shall be secured to all and remain inviolate forever; but a Jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law …”

Also like Nevada, the Washington anti-SLAPP law said a lawsuit over someone’s public comments could be dismissed in the early stages if the judge could not find “clear and convincing evidence” the plaintiff could prevail.

The Washington Supreme Court found that the law required the judge to usurp the duties of a jury to determine credibility, weigh factual evidence and decide whether the case is frivolous.

Of course, the Nevada Supreme Court might rule differently on the judicial power of summary judgment. That legal wrangling would be interesting to hear.

A compromise, if it ever sees the light day, might change the criteria from “clear and convincing” to a less strenuous “prima facie,” which was a part of the original Senate Bill 444, along with other weakening provisions.

I would still like to hear the arguments for keeping the current standard.

 

 

Bill to change state’s anti-SLAPP law survives with revisions

After being declared dead, that bill to weaken the state’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law has reared its ugly head.

According to the Las Vegas newspaper, a version of Senate Bill 444 was approved by the Assembly Judiciary Committee, albeit a much less draconian version.

This version restores the “clear and convincing” standard for having a lawsuit dropped, instead of the bill’s previous standard of “prima facie,” changes some deadlines and allows some discovery at the motion to dismiss stage. It also restores a $10,000 award for those wrongfully sued.

It is still an unnecessary tampering with a strong law. The Senate, which the prior version unanimously, would have to agree with the changes, and there is not much time left.

 

Anti-SLAPP bill appears to be dead

It appears the bill that would weaken Nevada’s strong anti-SLAPP (Strategic Lawsuit Against Public Participation) law is dead.

Assemblyman Ira Hansen, a former newspaper columnist and chair of the Assembly Judiciary Committee, which heard hours of testimony for and against the bill after it unanimously passed the state Senate, has told the Las Vegas newspaper it will not come up for a vote in his committee today, which is the deadline to keep legislation alive in this session.

Good riddance.

Editorial: Lawmakers should leave Nevada’s strong anti-SLAPP law alone

When your only tool is a hammer, every problem is a nail.

With lawyers, the solution to every problem is a lawsuit.

A bill to drastically alter Nevada’s strong anti-SLAPP law (Strategic Lawsuit Against Public Participation) breezed through the 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.

The Assembly recently heard nearly three hours of testimony for and against Senate Bill 444.

California attorney Mitchell Langberg and Senate Judiciary Chair Greg Brower said the bill restores balance to the state anti-SLAPP law because a 2013 revision went too far in favor of defendants. They argued that those who have been defamed  now face too great a burden to prove their case. Under the current law a plaintiff must show clear and convincing evidence of their claims. SB444 lowers the standard of proof to prima facia evidence and repeals a provision that awards $10,000 to successful defendants.

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?

Langberg recently had a defamation case brought by Steve Wynn in California dismissed because of that state’s anti-SLAPP law, which is not as strong as Nevada’s.

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 newspaper business writer and now an attorney representing the Nevada Press Association, and John L. Smith, a longtime Las Vegas columnist and biographer, both testified the proposed change to the anti-SLAPP law could have a chilling effect on reporting and commentary across all media. Hayes noted that newspapers today are far less profitable and a major consideration before publishing a story would be whether it could cost the paper hundreds of thousands of dollars in litigation.

Before Nevada passed its anti-SLAPP law that awards court costs and attorney fees to successful defendants, Smith and his publisher were sued over an advertisement for a book about Wynn. The Nevada Supreme Court eventually dismissed the suit, but not before the publisher went bankrupt. Smith was denied any costs and attorney fees.

Attorney Marc Randazza, who helped draft the current law, said he would have no problem acting as an attorney for a person who believes he or she has been defamed, despite 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 you 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.”

The Assembly should bury this misbegotten and mischievous attempt to weaken Nevada’s law on free speech.

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

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.

 

 

 

 

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: