As readers may know, I have a bit of a soft spot (or a hard on, depending on how you look at it) for the Nevada Anti-SLAPP statute. See The Silver State Sets the Gold Standard. We don't get many cases interpreting it out here in Nevada, so we generally interpret it the way that the California courts would look at theirs.
So when we depart from California, even in an unpublished opinion, it is worth looking at. Recently, we had a pretty spooky case come down, Schmidt v. Kieckhefer.
In that case, in an unpublished (and thank god, un-citeable) opinion, the Nevada Supreme Court upheld the denial of an Anti-SLAPP motion. It isn't that they upheld it that freaks me out, but rather how, along with the underlying facts and procedural history.
In the case, Gary Schmidt challenged incumbent Ben Kieckhefer in the 2014 Republican primary for a Nevada state senate seat. Schmidt ran a campaign ad claiming that Kieckhefer supported Harry Reid for senate in 2010. Kieckhefer sued Schmidt, and even managed to swing a preliminary injunction suppressing the ads, claiming an "irreparable injury to his career and reputation.”
FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT! Nevertheless, a plaintiff managed to get one in Reno.
That ought to bug you a little bit, but this wasn't just any prior restraint. This was a prior restraint on political speech — on a campaign ad! I am unaware of any cases in which this has happened in the past hundred years.
What was so defamatory about it that the trial court judge set aside, oh, I dunno… a century's worth of precedent? Well, you can't claim a Republican likes Harry Reid. Not here. Them's fightin' words. Its like yelling "fire" in a crowded theater!
The allegedly defamatory ad was based on an Oct. 31, 2010 Las Vegas Sun article, Reid endorsement may put Raggio on the outs in GOP Spoiler alert, that article talks about how State Senator Bill Raggio backed Harry Reid. Why is that news? Because Raggio was a big Republican leader since the 1970s.
In pertinent part, it reads:
Raggio, first elected in 1972, and who turned 84 on Saturday, said he wasn’t concerned with questions about who will lead the caucus. He said he was instead focused on getting control of the state Senate. He was, of course, curious about how the votes broke down.
Some Republicans who talked to the Las Vegas Sun said they support the longtime leader.
Besides Raggio, the group includes Assemblyman Joe Hardy, R-Boulder City, who’s running for state Senate; Ben Kieckhefer, a former spokesman for Gov. Jim Gibbons running for a seat in Reno; and Sen. Dean Rhoads, R-Tuscarora, who has also publicly backed Reid and is not up for re-election.
Schmidt claimed that the article could be fairly read to imply that Kieckhefer supported Reid.
Even I had to read the article twice to figure out who supports whom. The article is not a model of clarity. Nevertheless, if you read it twice, or at most three times, you figure out that Kieckhefer supported Raggio. That much is clear enough.
What is also clear is that Raggio supported Reid.
Could one reasonably then infer that Kieckhefer supported Reid?
Schmidt thought so, and filed an Anti-SLAPP motion, under the 2013 revision to the Nevada Anti-SLAPP statute. The motion was denied, since the lower court found that although the statement was made in good faith, Kieckhefer demonstrated by clear and convincing evidence that he would have a likelihood success on the merits of his claim. Kieckhefer would have had to show actual malice, that is a knowing falsity or a reckless disregard for the truth. That is a pretty tall order. But, according to the order, it seems that the only evidence he presented to support his statement was the Las Vegas Sun article.
I could discuss the actual malice standard, and how I couldn't see a court outside Florida coming to this conclusion — that it gets past actual malice — but a wrong decision on actual malice wouldn't necessarily warrant a blog post.
Here is where things get really weird. The court then reviewed the decision on an abuse of discretion standard. The Court is supposed to review the denial or grant of an Anti-SLAPP motion on a de novo review, since it is treated as a motion for summary judgment. But, they just invented this new elevated standard for half of the statute, the half that requires the court to determine whether or not the statement was a good faith statement on a matter of public concern.
That is supposed to be a super-duper low standard.
Nevertheless, that strange wrinkle did not change the outcome — even though the court did find that the lower court abused its discretion.
We conclude that the district court correctly denied Schmidt's motion to dismiss, but abused its discretion when it erroneously found that Schmidt made his statements in good faith. There is no rational way to read the Las Vegas Sun article without concluding that Kieckhefer supported Raggio for majority leader. Because one cannot rationally infer from this article that Kieckhefer supported Reid and there has been absolutely no other evidence presented that supports Schmidt's statement, we conclude that he did not act in good faith when he claimed that Kieckhefer supported Reid
No rational way?
I will agree that it is logically flawed to say:
1. Raggio supports Reid.
2. Kieckhefer supports Raggio.
3. Therefore, Kieckhefer supports Reid.
Flawed? Yes. But "no rational way?"
I have four higher education degrees, including BA and an MA in journalism, I got a reasonably acceptable score on the LSAT. I've got some reading comprehension cred. Meanwhile, I had to read the article twice to figure out what it was saying. I think it is at least rational to infer that Kieckhefer supports Reid — as long as we realize that "rational" can still be "logically flawed" and "false."
But the Nevada Supreme Court said that it was an abuse of discretion for the lower court to find that Schmidt could have even possibly made the campaign ad in good faith. This means that the currently very low bar for the first prong of the Anti-SLAPP statute could move higher, if this logic ever makes its way into a published decision. The court is supposed to look at the first prong as a tiny hop, and save "no rational way" for the second prong of the statute — whether the Plaintiff has a likelihood of success on the merits of his claim.
Its not that Schmidt should definitely not have lost this case. But, I'm very glad that this decision is unpublished and not citable as authority. Nevada has the nation's best Anti-SLAPP law, and this is good for everyone (even if you don't live in Nevada). Had this been a citable decision, the law would have had some health problems.
I truly hope that this was just politics playing out in an ugly way, and not the Nevada Supreme Court deciding to blaze a new and awful way of looking at political speech.
by Marc Randazza.
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