New Nevada Bill Is A SLAPP In The Face Of Free Speech

Sometimes the political process directly and overtly undermines the public interest. This is happening now in Nevada, as Nevada’s top-of-the-line anti-SLAPP statute — a law that protects speakers from frivolous defamation suits — is under attack from a bill that has received almost unanimous opposition but has nevertheless quietly cleared the Nevada Senate and appears primed for passage.

Two years ago, the Nevada legislature enacted major improvements to its anti-SLAPP statute, making it perhaps the strongest such law in the country. SLAPP stands for “strategic litigation against public participation,” and as a general matter anti-SLAPP statutes create special incentives and mechanisms to eliminate frivolous defamation suits. Nevada’s current anti-SLAPP statute protects a broad swath of speech — any “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum.” It creates a “special motion to dismiss” baseless claims aimed at retaliating against protected speech. It calls for an award of court costs, attorneys’ fees, and a discretionary penalty of up to $10,000 if the motion is granted. (The same relief is available for a plaintiff faced with a frivolous special motion to dismiss.) And it provides for a right of immediate appeal if the motion is denied.

It’s a good law, but it may not be long for this world.

A bill in the Nevada Senate — SB444 — would not just roll the Nevada anti-SLAPP statute back to its pre-2013 status, but in some ways at least it would actually make the law weaker than it was then. For example, before the 2013 changes to Nevada’s anti-SLAPP statute, the statute allowed 60 days for the filing of a special motion to dismiss; SB444 would cut that time to 20 days. More drastically, the bill would eliminate the costs, attorneys’ fees, and penalty provisions that were added in 2013, effectively pulling the law’s economic teeth.

Weakening an anti-SLAPP statute is bad public policy. In fact, just about everyone who’s taken a public position on SB444 absolutely hates it. First up, Marc Randazza, who spearheaded the good 2013 Nevada law:

Anti-SLAPP statutes are there so that free expression doesn’t come along with a side helping of bankruptcy, if your speech offends the wrong person…. The bill is 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.

(Regular readers might appreciate that Randazza also makes a case that anti-SLAPP statutes “are a pretty amazing species of law, because they are pro-consumer *and* pro-business.”)

Then there are the Nevada papers — the Sparks Tribune and Elko Daily Free Press (“There is nothing in the current law that needs to be fixed. The Assembly should derail this attempt to gag free speech.”) and the Las Vegas Review Journal (“There are times when an action on behalf of the few is so audacious that it cuts through the general malaise of the jaded citizenry. The legislative push on behalf of… Senate Bill 444, which effectively guts Nevada’s anti-Strategic Litigation Against Public Participation law, constitutes one of those times.”).

And there are members of the public, whose comments on the bill can be found here — they appear to be roughly 99% against the bill. A sample:

I am emphatically against any reduction in the anti-SLAPP protections in Nevada law. SLAPP actions harm the cause of free speech and are a drain on the resources of the courts and the community. SLAPP actions also chill legitimate free speech. Anti-SLAPP protections do not prevent legitimate claims from proceeding, but do allow the courts to efficiently weed out claims which have no real chance of success. Please do not let SB444 reduce protections against needless over-litigation.

Expanding out from Nevada, the website Techdirt has weighed in against SB444 as well: “Apparently, some people didn’t like the fact that they might have to pay up for filing bogus lawsuits trying to stifle speech.”

And First Amendment champion Ken White sums it up at Popehat: “It’s a complete disaster.”

There is someone, though, who’s gone on record in support of this bill — “Mitchell Langberg, outside counsel to Wynn Resorts and an expert on anti-SLAPP statutes,” testified at a Senate hearing “that Nevada’s law was too weak prior to it being amended in 2013… But now the law is too broad, and the legal challenges of bringing a legitimate case are too difficult.”  The Las Vegas Review Journal notes pointedly that Langberg recently brought a defamation case on behalf of Wynn Resorts — a company owned by Las Vegas billionaire Steve Wynn — against a stock analyst, and that case was “laughed out of a California courtroom.” (California also has a strong anti-SLAPP statute.) Courtesy of Marc Randazza, you can read that dismissal order here.

So pretty much everyone but a billionaire fresh off losing a frivolous defamation case wants to keep in place Nevada’s top-notch protections against frivolous defamation cases. But the billionaire-supported, everyone-else-opposed bill unanimously passed the Nevada Senate and is headed over to Nevada’s other chamber, the Assembly.

A victory for SB444 would be a win for wealthy would-be censors and a loss for the public interest. If you live in Nevada, or even if you don’t, consider pitching in to oppose the bill.

(Find a list of Nevada Assembly members here!)

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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].