Senate rejects compromise on anti-SLAPP law, so kill it

Get a shovel and bury Senate Bill 444.

The bill, which as originally drafted at the behest of casino owner Steve Wynn would have gutted the state’s strong an anti-SLAPP (Strategic Lawsuit Against Public Participation) law, breezed through the state Senate unnoticed by champions of free speech.

But in an Assembly committee they awoke and spoke up.

It was declared dead.

But at the last moment a somewhat reasonable compromise was reached — Amendment No. 861.

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

It was still an unnecessary tampering with a strong law, but not so bad. It was sent to the Senate.

 

But the Senate nixed the amendment and sent the original back to the Assembly.

Marc Randazza, who testified against the original SB444, blogged on the sleazy nature of the workings in Carson City.

“And then, today, Senator Brower and the other sellout lackeys in the Senate voted against the compromise. They want the Nevada Anti-SLAPP law gone completely. No compromise.

“Well Nevadans, now we have to give them what they asked for. No compromise. You simply can’t trust Greg Brower or the Senate Republicans. And, don’t think that is an anti-Republican statement — Assembly Republicans like Michele Fiore and Ira Hansen (among others) seem to really get that SB444 is a terrible thing. But, who knows what is happening here.”

He then lists ways to make your wishes known on this bill.

John L. Smith testifies:

Randazza testifies:

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.

 

 

 

 

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.