By J. DeVoy
Nevada is something of a curiosity in terms of litigation and its laws. It has nearly comprehensive regulations for brothel operation, yet very little binding precedent. I recently did some broad research on receivership of a Nevada company for a public filing, and netted fewer than a half-dozen cases – in both federal and state courts – in the state’s entire history. This has been common among most legal issues in Nevada. Compared to other states, Nevada does not have much precedent going for it. Consequently, legislative history in Nevada is heavily emphasized in the courts and especially on matters of first impression – which arise far more often than one would believe.
Another twist on law practice in Nevada is that the state desperately tries to differentiate itself from California – despite adopting many California tests with respect to spousal asset division. So it is not surprising that Nevada’s anti-SLAPP statute is a pathetic shadow of California’s.
Nevada’s anti-SLAPP laws are found in NRS 41.635-70. They aren’t all bad, either: The attorney general may intervene on behalf of a SLAPPee and file a special motion to dismiss under the anti-SLAPP law. NRS 41.660. The special motion is treated as a motion for summary judgment – operating as an adjudication on the merits – and discovery is stayed while it is pending. Id. The statutes requires the court to award reasonable attorney’s fees to the prevailing anti-SLAPP movant, and creates a separate cause of action for the prevailing movant, allowing him or her to bring an action for recovery of compensatory and punitive damages, and attorney’s fees in that action, against the SLAPPer. NRS 41.670.
Here’s the rub: The statute can only be used against cases designed to silence “good faith communication in furtherance of the right to petition.” NRS 41.660(1). Good for Nevada to protect political speech and all, after its been established in everything from Connick v. Myers and Boos v. Barry to the “God Hates Fags” case (Snyder v. Phelps) to be the most important type of speech one can make, but there are a lot of qualifications in that sentence. What is a ”good faith communication in furtherance of the right to petition”? NRS 41.637 has the answer:
“Good faith communication in furtherance of the right to petition” defined. “Good faith communication in furtherance of the right to petition” means any:
- Communication that is aimed at procuring any governmental or electoral action, result or outcome;
- Communication of information or a complaint to a Legislator, officer or employee of the Federal Government, this state or a political subdivision of this state, regarding a matter reasonably of concern to the respective governmental entity; or
- Written or oral statement made in direct connection with an issue under consideration by a legislative, executive or judicial body, or any other official proceeding authorized by law
which is truthful or is made without knowledge of its falsehood.
While this is important speech to protect, finding a case where it can be used is like threading a very small needle. It is also a bit discouraging that Nevada had to make it clear to its citizens – and mostly its political operatives and public officials – that such conduct is disallowed.
Broadening the scope of Nevada’s statute would still encompass these types of speech. But it would make the anti-SLAPP useful for actually preventing SLAPP suits. Nevada did introduce its anti-SLAPP statute in 1993 and last amended it in 1997, before the dawn of mass internet access era (where every petty asshole with $500, delicate sensibilities and a desperate or unethical lawyer is a defamation plaintiff), which explains the limited view of “public participation.”
Nevada’s anti-SLAPP statutes have some very good provisions. The SLAPP defendant can move on his or her own, or the AG can intervene (largely because the cases are explicitly political under the current regime). Reasonable attorneys’ fees are awarded independent of the Court’s discretion, and the prevailing anti-SLAPP movant has his own cause of action for compensatory damages, punitive damages, and attorney’s fees. While that’s not quite as iron-clad as California’s bond requirement, that’s pretty impressive. But the scope of application is just pathetic. California’s anti-SLAPP statute covers any “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” which includes:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,
(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,
(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or
(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Would it kill Nevada to integrate C.C.P. § 425.16(e)(3) and (4) into NRS 41.637? Mindful of California’s creeping influence in Nevada, there is not a reason to borrow strictly from that state when plenty of others have good anti-SLAPP statutes. Oregon and Washington have them as well. More analogous to Nevada in character is Texas, which recently unleashed its own anti-SLAPP statute protecting:
1. the right of free speech
2. the right to petition; or
3. the right of association
Tex. Civ. Prac. and Remedies Code § 27.005(b). Expansive and detailed definitions of what these terms embrace can be found in Tex. Civ. Prac. and Remedies Code § 27.001. An overview of the new Texas law is available at the Citizen Media Law Project.
There are good models for Nevada to draw from in enhancing its anti-SLAPP statute without blindly deferring to California. I will readily admit that Nevada is not a first-teir state like California, New York or Massachusetts (the latter two of which have mediocre-to-abysmal anti-SLAPP statutes), but it is a global and national tourism destination. Why should the state compete only to be the best in hotels and gambling, especially when Macau’s rise threatens that position? Nevada can compete in other areas as well, including the laws it enacts. Nevada already has a business-favorable legal climate – why not a speech-favorable one as well?
It is not seriously disputed that SLAPP suits arise from all sorts of things other than speech about pending government issues. Website owners or administrators covered by 47 U.S.C. § 230 get sued for third parties’ statements and must pay the cost of defense. Whiny, entitled olds constantly sue people for commenting – often accurately – on their own disgusting or unlawful public deeds. Yet, the victims of those suits must bear the cost of defense because their speech did not relate to some pending agriculture bill.
While copyright infringement is of a different genus than defamation, one must wonder whether the 200+ Righthaven lawsuits filed in Nevada would have been resolved differently if the state had a stronger anti-SLAPP statute. Many of the defendants used the news articles in question to discuss political events, or public interest items; in fact, the District of Nevada has never denied a properly raised argument that the defendant’s use of the content was non-infringing fair use. Combined with Righthaven’s problems with standing, as Courts have repeatedly held that it did not have sufficient rights to sue, what other purpose could its lawsuits serve? If the statute were more broadly constructed, it could have challenged these sham copyright lawsuits – requiring Righthaven to pay the victorious defendant’s attorneys’ fees and giving the successful movant a new cause of action against Righthaven, allowing the plaintiffs’ bar to jump in the fray. (Query whether Righthaven would pay any such judgments.)
To broaden the scope of the anti-SLAPP statute, some compromises may have to be made. The separate cause of action might have to be scrapped in favor of the SLAPP filer simply having to post a bond for the anti-SLAPP movant’s fees, which would be awarded upon a successful motion. Perhaps a Texas-style “loser pays” model would be approached. The provision allowing the Nevada Attorney General likely would have to be scaled back to apply only in political cases (rather than general matters of public interest) so as to avoid issues with the government picking sides. Perhaps none of these things would have to change. The scope of protection, however, absolutely must. As it stands now, Nevada’s courts are begging to be used as an abusive litigation hell-house against those who dared to speak freely.