Popehat

A Group Complaint about Law, Liberty, and Leisure

Why Are Nevada State Senators Trying To Eviscerate The State's Anti-SLAPP Statute?

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In 2013 Nevada passed the strongest anti-SLAPP statutes in the United States. This statute was muscular. Not only did it cover a wide array of speech, and require substantial proof of the potential validity of a claim, it had frills like a potential $10,000 penalty on top of attorney fees for SLAPPers and a private cause of action so targets of SLAPP suits could sue their tormentors. My friend and colleague Marc Randazza, First Amendment badass, helped frame it, which is why it was so strong. It's already proven effective in Nevada's courts. It's an excellent tool to protect free speech from meritless lawsuits.

So who in the Nevada Senate Judiciary Committee is trying to kill it, and why?

The Nevada Senate Judiciary Committee proposed Senate Bill 444, and the senate just voted unanimously to approve it. Now it's up to the Assembly, and the Governor. I hope they stop it, because it's a complete disaster. Senate Bill 444 takes Nevada's superior anti-SLAPP statute and renders it very substantially less effective:

  • The statute previously applied to the broadest possible array of speech, meaning it could be used to defend all sorts of defamation (and other speech-targeted) claims on matters of public interest.  SB 444 narrows the protection to speech on an "issue of public concern," meaning "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."  If you have no idea what that actually means, you're not alone.  There's a real danger it will deprive defendants of anti-SLAPP protection when they've written about some relatively obscure hobby or issue or concern.  There's also a danger that it will be used to exclude consumer reviews on Yelp and similar sites from the protection of the statute.
  • SB 444 dramatically changes the deadlines for an anti-SLAPP motion.  The existing law — as in most states — allows a motion within 60 days of service of the SLAPP suit.  SB 444 reduces that to 20 days — a very short period to find a lawyer and have that lawyer brief a potentially complex issue.
  • Under the existing statute, if a defendant shows that a lawsuit is aimed at speech covered by the statute, the burden shifts to the plaintiff to establish that they can prevail on the claim by submitting evidence.  Though the statute refers to "clear and convincing" evidence, cases have interpreted it to mean only specific and non-speculative evidence.   SB 444 changes the language, requiring the plaintiff to make only a "prima facie case."  To non-lawyers, that means simply offering any evidence which, if accepted at face value, could support a claim.  It's not clear how the Nevada courts will interpret the meaning of that change, and how a plaintiff's burden will be reduced.  Moreover, SB 444 specifically excuses the plaintiff from offering any evidence of "subjective intent or knowledge of the defendant."  In other words, the plaintiff doesn't have to have any evidence suggesting that the defendant knew or should have known a statement was false.  This dramatically reduces the plaintiff's burden in opposing an anti-SLAPP motion.
  • Under existing law, a prevailing defendant is entitled to fees.  If the motion is denied, the plaintiff is entitled to fees if the court finds that the motion is frivolous or vexatious.  SB 444 changes that to require a fee award to a plaintiff who defeats an anti-SLAPP motion if the court finds that the motion was filed "in bad faith" or without "reasonable basis."  That inquiry is much cloudier and unpredictable than an inquiry into frivolousness, and will deter defendants from filing close-call motions.
  •   SB 444 eliminates the court's ability to award up to $10,000 penalty on top of attorney fees, and eliminates the cause of action against someone who files a SLAPP suit.  That substantially reduces the deterrent effect of the statute.

If you were a lawyer representing defamation plaintiffs — from businesses suing Yelp reviewers to aggrieved subjects of social criticism — this would be the bill you'd draft to undermine Nevada's anti-SLAPP statute. Is that what happened? Which specific Nevada State Senator introduced the bill, and whose water was that senator carrying? Why are the senators trying to reduce free speech protections so dramatically in Nevada?

I don't know. But if anyone knows Nevada politics and politicians, I'd like to find out, so I can write about it. If you care about effective anti-SLAPP statutes, you might write to Nevada State Senators asking why they killed the anti-SLAPP statute, or write to the Assembly members asking them to stop it.

Last 5 posts by Ken White

Comments

  1. Thank you for including links to the senators/assembly. As a Nevada resident, this worries me greatly, so I have sent an email to my own rep and several others on the Assembly Judiciary committee.

  2. Curiously, there is no individual sponsor of the bill: it's simply the entire Senate Judicial Committee. I wonder if that's routine in Nevada.

    More worrying: there is no analysis of the bill and its digest (that is, summary provided for legislators to know what the hell it is they're voting on) is misleading. Rather than identifying that the bill would make changes to an existing anti-SLAPP statute, it vaguely references that there is "existing law" which can "deter frivolous or vexatious lawsuits" like SLAPP suits, then discusses how this bill would protect people from these types of suits. The text of the bill similarly omits the language of the actual statute (that is, it's not red-lined or noting where changes are made). Instead, it just replaces the whole text of the law, with no indication as to what's being removed. In other words, neither the digest nor the actual text of the legislation give legislators (or the public) any information whatsoever as to how this bill changes the existing anti-SLAPP statute. None. That deprives the legislators information as to what they're doing and inhibits litigants and courts from later understanding the legislature's intent, which can be critical when interpreting law in weird, unforeseen situations.

    I'm eager to see the minutes of these committee meetings and votes. I'd like to see what the legislators — many of whom voted in favor of the prior anti-SLAPP statute — were told about what this bill actually does. I think they're being hoodwinked into reversing legislation they previously supported.

  3. By unanimous vote? I guess that's another way of saying that every member of the judiciary committee is bought and paid for?

  4. This is so BIZARRE. Like, what problem does this attempt to solve? The anti-SLAPP law had a clear purpose, but there hasn't even been enough time to evaluate if it worked or not.

    I'm trying to imagine working my computer like this if I had never seen a computer before: "Huh. I wonder what THIS button does. This one? Let's just push them all at once."

  7. @Adam Steinbaugh

    More worrying: there is no analysis of the bill and its digest

    Last week I heard John Gastil explaining how Citizens' Initiative Reviews work in Oregon. For each citizens initiative on the ballot, a semi-random panel of 20 voters spends a week in moderated discussion and write a one page blurb containing both the for and against arguments which goes into the voters' pamphlet.

    That kind of thing would help at least as much for politicians voting on bills as for the general public voting on initiatives. Not only because they would be more clearly written than digests, but there is no way a citizens' review would forget to say if the 20 day deadline is more or less than the existing law.

    Not saying politicians are dumber or more easily hoodwinked than people, but my suggestion is that citizens reviews replace the digests, rather than added as an analysis of it.

  9. @barry

    That's not very practical (i.e., it's completely unworkable) in an assembly where 2000 bills are introduced every year, and where their digests have to be updated after every amendment.

    Unlike citizens, legislators have numerous staff attorneys, fiscal analysts, and other advisors they can turn to to explain a bill; they can also talk to the author, for that matter.

  10. This is another reason to support a federal anti-SLAPP bill. If we build anti-SLAPP protection on a state-by-state basis, we'll routinely run into misguided efforts like this. Eric.

  11. OK, so I watched that video. The chairman makes vague reference to "perceived problems" with the bill, and that "[they]'ve learned some lessons" since the previous session. I can't tell if he's talking about revisions to the new bill or problems with the existing law. Doesn't help that the guy who reads them the summary of the new bill sails right through it without ever acknowledging that there's an existing anti-SLAPP law in place.

    2.5 hours allocated to one banking/lending regulation. 2.5 minutes spent on free speech.

    Apparently a "Mr. Mason" did some tinkering on the new bill, though no sponsor is mentioned.

  13. @PeterW

    That's not very practical (i.e., it's completely unworkable) in an assembly where 2000 bills are introduced every year

    That *is* a lot. That's 1.6 million person-hours of citizens panels a year multiplied by the average number of amendments per bill.

    And 2000 bills a year is also a lot. That's 5 or 6 a day. I don't have an estimate for what that is in dollars of graft and kickback, but it looks like it would be a lot too (I suspect the 'other advisors'). I'm not surprised to hear rumors that some bills get voted on without being read.

    When I first heard of billion-with-a-b dollar presidential election campaigns (including pac's, but just the presidential), it didn't sound very practical either. But as long as it's working properly and makes approximate sense to most people, I suppose it's OK.

    And no, it's not a suggestion to pay or bribe people on citizens' panels $600,000 an hour each to write digests.

  15. Heh, to quote some other guy on the internet. I'm wondering whether it has anything to do with the internet meme "Harry Reid has still presented no proof that he is not a pederast".

  16. Is there a fund non-Nevada residents can donate to, for whatever group would fight this?

  17. @PeterW: How can anyone reasonably consider 2000 bills in a year? There are only 260 working days in a year, and I doubt the assembly is in session the whole year. Back of the envelope says they would need to consider on the order of a bill an hour for 8 hours a day to get through them all. I don't see how anyone can give even a pretense of careful consideration at that rate.

  19. Yup, it looks like this was done at the command of Wynn. reason.com/blog/2015/04/22/why-is-steve-wynn-trying-to-gut-nevadas

    Sounds pretty libertarian to me. All he wants is the freedom to sue people frivolously without the fear of Big Government disbarring his lawyers for unethical practice.