By Marc Randazza
Nevada's Anti-SLAPP law has survived a constitutional challenge to its validity in Shapiro v. Welt.
Nevada's original anti-SLAPP statute, Nev. Rev. Stat. 41.637 et seq., adopted in 1993. Its protections were limited to speech "in furtherance of the right to petition," and thus it did not provide adequate protections to free speech rights in Nevada (and by extension, beyond, See Adelson v. Harris, 774 F.3d 803 (2014)).
With the signing of Senate Bill 286 into law on June 3, 2013, that changed. It now protects "the right to free speech in direct connection with an issue of public concern."
In Shapiro v. Welt, the appellant challenged the constitutionality of the statute. Given that the statute relied in large part on the Washington Anti-SLAPP statute, this was of some concern. The Washington Supreme Court struck down the Washington statute as unconstitutional in Davis v. Cox, 183 Wash. 2d 269, 274, 351 P.3d 862 (2015). However, in 2015, in response to a legislative challenge to the Nevada law, we amended the statute to conform more with California than Washington. That change, however, did not guarantee the survival of the Nevada law.
Now, with Shapiro, the Nevada law faces no similar fate.
A secondary issue in the case, and an important one, is that the Nevada Supreme Court recognized that Nevada and California Anti-SLAPP jurisprudence are essentially one body of law. This is not entirely new law. In John v. Douglas Cnty. Sch. Dist., 125 Nev. 746 (2009), the Nevada Supreme Court held similarly, but this was discussing the prior version of the law.
The Shapiro court reversed the lower court's decision that the Defendant's speech was a matter of public concern. While this, on its surface, might seem to be a "bad" decision for free speech proponents, I don't see it as that troubling.
The Anti-SLAPP law requires a two-step inquiry. First, is the speech a "matter of public concern?" Second, does the case have enough merit to move forward? This appeal was all about "matter of public concern." While this is not a high bar, the Supreme Court found that the trial court did not engage in enough inquiry to figure that out.
The good news is that the Court reaffirmed the John v. Douglas County pronouncement that Nevada courts should rely on the rich body of California case-law in interpreting the Nevada statute. Given the scant case-law we have in Nevada, this is a godsend. California has interpreted "matter of public concern" as extremely broad. Meanwhile, I have seen Nevada trial court judges looking at the standard as much more narrow.
This is a good decision that brings more predictability to Anti-SLAPP litigation under the Nevada statute, and ultimately will function to keep Nevada's free speech protections aligned with its free-speech-protective neighbor.
Disclosure: Randazza Legal Group represented amici curiae, the Nevada Press Association, TripAdvisor, and Yelp in this matter. (Amicus Brief here)
Marc Randazza is the national president of the First Amendment Lawyers Association
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