Las Vegas City Life coverage on Nevada’s new anti-SLAPP law, here.
By J. DeVoy
This is not a Star Trek order. There are no pithy jokes here. There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”
Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet. This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains. This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important. Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying. But, it works.
Cooksey’s backstory is remarkable, but surprisingly common among health advocates. A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009. His dietitians advised him to eat a diet high in carbohydrates. Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates. His blood sugar normalized and he was able to stop using insulin. With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.
Paying it forward, Cooksey opened his blog, diabetes-warrior.net, in early 2010. Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice. The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes. During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.
Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public. In July 2012, Cooksey attended a nutritional seminar for diabetics. The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead. An attendee at the seminar was so “”"offended”"” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics. Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:
a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.
Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.
The Board contacted Cooksey. It told him that he would need to change his website. It also told him that it was statutorily entitled to get an injunction against him. Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.
The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license. After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments. The Board’s message was clear: Fix it – or else. Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties. Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”
After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech. He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied. The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim. The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.” The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.
At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions. Many who read this blog would disagree with the outcome. Cooksey disagreed. And so, too, did the United States Court of Appeals for the Fourth Circuit.
The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court). The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness. The analysis is considerable, going on for many pages. Some highlights are excerpted below:
On the question of standing:
In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).
However, this anticipated cannot just be speculative or the fruit of conjecture. The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:
In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.
The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution. From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.
Unfortunately, the opinion gave some daylight to the Board’s position. If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail. However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).
As for ripeness:
Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).
The Court then gave the Board a little more abuse for soiling its own bed.
In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.
In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits. The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants. If nothing else, it will buy them time. Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage. Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.
A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost). While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded. While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.
We are proud to announce that the mission has been accomplished. Nevada officially has a new anti-SLAPP law it can be proud of.
For the last two years, the Legal Satyricon has been complaining about the inadequacy of Nevada’s existing anti-SLAPP law. Notably, one judge suggested the possibility that the statute could be construed to only be used in lawsuits involving communications directly to a government agency, and the U.S. Court of Appeals for the Ninth Circuit ruled that the current statute did not allow for an immediate appeal of a special motion to dimiss.
Ever since I moved here in 2011, I’ve hoped to civilize Nevada with a meaningful anti-SLAPP law. Last year, I had the pleasure of meeting now-state senator Justin Jones, who heard my plea. My pitch was that in addition to protecting free speech, it would help Nevada’s efforts to snag technology jobs that were leapfrogging the state from California to Utah. Senator Jones agreed to present my legislation to the Nevada Legislature if he won–thankfully, he did.
When Nevada’s legislative session commenced in February, the Randazza Legal Group team was a flurry of activity, drafting materials in support of a new Anti-SLAPP bill based on materials from throughout the country to present to the Legislature. Rather than simply replicating the statutes in California, Washington, or Texas, though, the ultimate bill (SB 286) made specific, limited additions to broaden the scope of Nevada’s Anti-SLAPP statutes while maintaining innovative provisions within those laws that were uniquely Nevadan.Armed with my dream statute in hand, I flew up to Carson City to present testimony before the Senate Judiciary Committee. My testimony focused on the need for a stronger Anti-SLAPP statute in Nevada, and the harm to individuals and businesses done by the consumption of public and private resources on the litigation of dubious claims against First Amendment-protected speech. The Senate Judiciary Committee, and later the entire Nevada Senate, approved of the bill. I then testified before the Assembly Judiciary Committee in support of the bill. Like the Nevada Senate, the Assembly Judiciary Committee and the entire Nevada Assembly passed the bill. The entire Nevada legislature had agreed that it was time to enhance Nevada’s Anti-SLAPP statutes so that they would embrace – and protect – a broader range of Constitutionally protected expression. On June 3, 2013, Nevada Governor Brian Sandoval signed the bill into law. The changes will take effect on October 1, 2013. The main changes are discussed below. The full text of SB 286 as enacted by Governor Sandoval can be found here.
Expands the Breadth and Scope of Protected Speech. The new law expands protected conduct to include any “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum,” so long as the statement is truthful or made without knowledge of falsehood.
Allows For an Immediate Appeal of a Denied Anti-SLAPP Motion. The new law modifies NRS 41.650 so that a movant is immune from any civil action – not just liability – from claims arising from his or her protected speech, which allows for an immediate appeal.
Expedites Judicial Consideration of Anti-SLAPP Motions. Under the new law’s changes, the time for a court to rule on a motion after filing is reduced to 7 judicial days from 30 after the motion is served upon the plaintiff.
Creates a $10,000 Stick to Deter Frivolous Claims. In addition to allowing for a movant’s recovery of costs and attorneys’ fees, the bill amends NRS 41.670 to allow the court to discretionarily award a successful movant up to $10,000 in addition to his or her reasonable costs and attorneys’ fees. This serves as a significant disincentive and warning for those who might wish to pursue censorious litigation.
Creates SLAPP-Back Provision to Prevent Frivolous Anti-SLAPP Motions. The bill amends 41.670 so that a court denying a special motion to dismiss must award the claimant to successfully defeat the Anti-SLAPP motion his or her costs and reasonable attorneys’ fees upon finding that the Anti-SLAPP motion was “frivolous or vexatious.” I believe this is necessary, lest the Anti-SLAPP law become a barrier to justice for those with supportable claims.
Retains Key Elements From Nevada’s Existing Laws. While the bill represents a massive change to Nevada’s Anti-SLAPP laws, Nevada’s existing statutes had a number of powerful provisions that were unique among Anti-SLAPP provisions are fortunately still intact. The Nevada Attorney General, or the “chief legal officer or attorney of a political subdivision” in Nevada may still “defend or otherwise support the person against whom the action is brought.” NRS 41.660(1)(b). SB 286 also retains the successful Anti-SLAPP movant’s right to bring a separate action against the defeated plaintiff for compensatory damages, punitive damages, and the attorneys’ fees and costs for bringing the new action.
These changes bring Nevada into line with California, Oregon, Washington, Texas, and the District of Columbia as having the most comprehensive and progressive Anti-SLAPP statutes in the nation. I am proud of these changes and the effort my Randazza Legal Group team put into effecting this critical update to Nevada’s Anti-SLAPP statutes. We all look forward to seeing this statute in effect.
By Jay Wolman
In a page out of Rakofsky vs. The Internet, it appears that one of the law firms and attorney groups frequently criticized as representing copyright trolls, Paul Duffy, John Steele, and Prenda Law, has gone on the offense against its critics.
More details here:
copies of the complaints are linked by Jordan Rushie (1st Link). I have not read the entirety of the complaints, but I believe I saw quite a few protected statements that cannot form the basis of liability. Unclear what motivated the suits, but I have a feeling the Plaintiffs will come to regret them.
Editor’s note, the views in this post are those of Mr. Wolman. No other Satyriconistas have taken a public position on this dispute.
The mainstream media has noticed that something is amiss in Steubenville, Ohio. (Rape Case Unfolds on Web and Splits City).
And Jezebel gives credit where it is due — to a blogger who refused to let the story die. (We Wouldn’t Know About the Steubenville Rape Case If It Wasn’t for the Blogger Who ‘Complicated’ Things).
I won’t comment beyond my earlier post on the case, because I have been brought in to help defend the blogger.
Metabolic Research v. Ferrell – Nevada Needs a Revised Anti-SLAPP Statute, but the 9th Circuit Gives us some DaylightJune 20, 2012
As a lawyer licensed in five states (MA, FL, CA, AZ, and NV) and who practices free speech law nationwide, I am in a position to comment on the relative merits of various states’ views on First Amendment principles. Among the many states where I have worked on cases, Flori-duh is the worst. Hands down.
It has no anti-SLAPP law to speak of. Its state legislation intended to deter frivolous litigation, Fla. Stat. 57.105, looks great on the books but is a “paper tiger.” While the statute was amended in 2002 to give it some real teeth, the state judiciary generally does not apply it. As a result, Flori-duh is a hotbed of frivolous SLAPP litigation. Why not? No downside to filing a garbage SLAPP suit. No prevailing party fees. No quick dismissal. No sanctions really available. What does a would-be SLAPPer or his attorney have to lose? Nothing.
If Nevada does not update its anemic anti-SLAPP law, it bears the risk of becoming the Florida of the West — at least with respect to frivolous SLAPP litigation. That risk is laid bare for all to see in the recent case of Metabolic Research v. Ferrell, despite the fact that the 9th Circuit seems to have tossed in a prescription to cure some of the symptoms of the Nevada Anti-SLAPP statute’s lack of a fully developed spine.
On October 20, 2009, Scott J. Ferrell, an attorney practicing law in Orange County California, sent “demand letters” to Metabolic Research, Inc. (“Metabolic”), at its address in Las Vegas, Nevada, and to General Nutrition Centers, Inc. (“GNC”), at its address in Pittsburgh, Pennsylvania. The demand letters purported to notify the recipients that they had violated California Civil Code §§ 1750-1756, the California Consumer Legal Remedies Act (“CLRA”), by falsely advertising the properties and potential benefits of a product named Stemulite, which they marketed as a natural fitness supplement. Ferrell represented that he was acting on behalf of Michael Campos, Thomas Hess, and Sarah Jordan, all of whom he alleged purchased Stemulite in California, in reliance on the supposed false advertising, and had not received the purported benefits. (Op. at 7027)
Ferrell demanded that Metabolic and GNC “cease their false advertising of Stemulite” (Op. at 7027), identify purchasers of the substance, provide refunds to them all, disgorge profits from Stemulite sales, and implement a corrective advertising campaign. A failure to do so would be met with a lawsuit.
Metabolic did not cave. Instead, they filed a lawsuit for extortion against Ferrell and the putative class he claimed to represent. The suit also included claims for “conspiracy to engage in racketeering, civil extortion, tortious interference with contract, and tortious interference with prospective economic relations, i.e., interfering with the agreement between Metabolic and GNC. Metabolic sought declaratory relief and punitive damages.” (Op. at 7028). Ferrell sought to have the case dismissed under the Nevada Anti-SLAPP statute, Nev. Rev. Stat. § 41.660. However, the motion was doubly-useless.
Judge Mahan of the District of Nevada found that Nevada’s Anti-SLAPP statute only covers communications made “directly to a governmental agency.” That seems to be a bit narrow of a reading of the statute, which is reproduced below:
NRS 41.660 Attorney General or chief legal officer of political subdivision may defend or provide support to person sued for engaging in right to petition; special counsel; filing special motion to dismiss; stay of discovery; adjudication upon merits.
1. If an action is brought against a person based upon a good faith communication in furtherance of the right to petition:
(a) The person against whom the action is brought may file a special motion to dismiss; and
(b) The Attorney General or the chief legal officer or attorney of a political subdivision of this State may defend or otherwise support the person against whom the action is brought. If the Attorney General or the chief legal officer or attorney of a political subdivision has a conflict of interest in, or is otherwise disqualified from, defending or otherwise supporting the person, the Attorney General or the chief legal officer or attorney of a political subdivision may employ special counsel to defend or otherwise support the person.
2. A special motion to dismiss must be filed within 60 days after service of the complaint, which period may be extended by the court for good cause shown.
3. If a special motion to dismiss is filed pursuant to subsection 2, the court shall:
(a) Treat the motion as a motion for summary judgment;
(b) Stay discovery pending:
(1) A ruling by the court on the motion; and
(2) The disposition of any appeal from the ruling on the motion; and
(c) Rule on the motion within 30 days after the motion is filed.
4. If the court dismisses the action pursuant to a special motion to dismiss filed pursuant to subsection 2, the dismissal operates as an adjudication upon the merits.
(Added to NRS by 1993, 2848; A 1997, 1365, 2593)
The Statute itself is (I think) already too textually narrow, in that it could be interpreted to protect the right to petition, and not the right to free speech (like California, Oregon, Texas, Washington, and the District of Columbia’s Anti-SLAPP statutes). However, it seems that Judge Mahan trimmed it even more by reading a restriction into the statute that is just not there.
The action was brought against Ferrell based upon a “good faith communication in furtherance of the right to petition.” I see nothing in the plain language of the statute that says your “right to petition” is only activated if you are speaking directly to a government official. Mr. Ferrell felt the same way, so he appealed to the 9th Circuit, which showed us yet another grave weakness in the Nevada Anti-SLAPP statute — it does not provide for an interlocutory appeal.
The 9th Circuit compared California’s Anti-SLAPP statute to Oregon’s by looking at a pair of 9th Circuit decisions. In Englert v. MacDonell, 551 F.3d 1099, 1106-07 (9th Cir. 2009), the 9th Circuit denied an appeal of an anti-SLAPP motion as a collateral order, because denials of a motion to strike under Oregon’s Anti-SLAPP statute were not immediately appealable. The Oregon statute only provided from immunity from liability in a SLAPP. It did not provide for immunity from suit. (Oregon has since fixed this defect in its statute). On the other hand, the 9th recognized in Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003) denials of Anti-SLAPP motions under California’s statute are immediately appealable.
In Batzel, we held that the denial of a motion to strike brought pursuant to California’s anti-SLAPP statute satisfied the collateral order doctrine because the purpose of the California law was to provide citizens with a substantive immunity from suit. 333 F.3d at 1025-26. In reaching this conclusion, the court relied upon the fact that California’s law provided for immediate appeal in state court and legislative history demonstrating that “lawmakers wanted to protect speakers from the trial itself rather than merely from liability.” Id. at 1025.
In contrast, Englert held that Oregon’s failure to provide for an immediate appeal at that time indicated its legislature’s belief that the normal appeal process was adequate to vindicate the anti-SLAPP right, which it in turn described as “a right to have the legal sufficiency of the evidence underlying the complaint reviewed by a nisi prius judge before a defendant is required to undergo the burden and expense of a trial.” 551 F.3d at 1105. The Englert court explained that “[i]t would simply be anomalous to permit an appeal from an order denying a motion to strike when Oregon was satisfied that the values underlying the remedy could be sufficiently protected by a trial judge’s initial review of the motion, followed by appellate review only after a final judgment in favor of the plaintiff.” Id. at 1105-06.
(Op. at 7033)
While discussing the differences between the two kinds of SLAPP statutes, the 9th Circuit hinted that Mahan’s decision might have been flawed, while shoring up the position that it was improper to review the appeal at this time.
We turn first to the major distinguishing feature between the Oregon and California laws—the right to an immediate appeal in state court—and find that Nevada’s antiSLAPP statute is more like Oregon’s at the time we decided Englert. In Nevada, “where no statutory authority to appeal is granted, no right exists.” Taylor Constr. Co. v. Hilton Hotels Corp., 678 P.2d 1152, 1153 (Nev. 1984). Nevada’s antiSLAPP statute does not expressly provide for an immediate right to appeal. It does state, however, that a court shall stay discovery pending “the disposition of any appeal from the ruling on the [special motion to dismiss].” Nev. Rev. Stat. § 41.660(3)(b)(2). We are unpersuaded that the statute’s generalized reference to an appeal implicitly, or otherwise, confers an immediate right to appeal. Nevada based its antiSLAPP statute on California’s law, and the legislature could have mirrored California’s unequivocal language concerning an immediate right to appeal had it intended to furnish one. See John, 219 P.3d at 1281 (“Nevada’s anti-SLAPP statute was enacted in 1993, shortly after California adopted its statute, and both statutes are similar in purpose and language.”). (Op. at 7034-35)
The Legal Satyricon previously noted another case that cited John and held that the Nevada and California statutes should be read similarly, at least in substance. This lends further credence to the argument that the District Court did read NRS 41.660 too narrowly. But, unfortunately for Mr. Ferrell, the Metabolic Research case is not about the substance of the statutes, but how they function procedurally.
Further persuading us that the Nevada legislature did not intend for its anti-SLAPP law to function as an immunity from suit is the statute’s definition of the anti-SLAPP right. Nevada’s law provides that “[a] person who engages in a good faith communication in furtherance of the right to petition is immune from civil liability for claims based upon the communication.” Nev. Rev. Stat. § 41.650 (emphasis added). We must presume the legislature selected its words with purpose, and immunity from “civil liability” is unquestionably different than immunity from “suit” or “trial.” Liberal, 632 F.3d at 1074 (“A denial of summary judgment is immediately appealable when the immunity is an immunity from suit, but not when it is a mere defense to liability.”). (Op. at 7036
The Court then went on to list the ways that Ferrell, and other similarly-situated defendants, might find justice. The 9th noted that despite the fact that Ferrell couldn’t appeal at this point, he still had a potential award of fees and costs later on. This might be true, but it is a small comfort if he can’t afford to litigate the matter for that long. The 9th then reminded us of the existence of Rule 11, the laughable sanctions mechanism in the Federal Rules. Rule 11 sanctions against even the most outrageous filings are slightly more common than rainbow sherbet flying out of a unicorn’s ass.
The 9th then threw in some very interesting dicta, in which it seemed to lay out an instruction manual for litigants (at least in Federal Court) who seek review of lower court decisions, when an Anti-SLAPP statute fails to provide a right to an interlocutory appeal.
First, a litigant in federal court may ask the district court to certify and the court of appeals to accept an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) as involving controlling questions of law the resolution of which will speed the termination of the litigation. Secondly, in truly extraordinary cases, a writ of mandamus is available. 28 U.S.C. § 1651(a) (the All Writs Act codifying the common law writ of mandamus); Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 377 (2004). We have had recourse to the writ of mandamus to protect first amendment rights where we feared that the Mohawk decision foreclosed collateral order appeals. See Perry v. Schwarzenegger, 591 F.3d 1147, 1154-56 (9th Cir. 2010). Ferrell did not seek to avail himself of 28 U.S.C. § 1292(b), nor did he seek mandamus in this Court. We, therefore, express no opinion on how we might have decided such an appeal or application had one been brought. We conclude that an immediate appeal is not necessary to protect the rights in Nevada Revised Statute § 41.660. (Op. at 7037-38).
We should thank the 9th Circuit for this, because it seems to be almost inviting federal litigants to use these alternative mechanisms to get true Anti-SLAPP protection, even if the Nevada legislature neglects to fortify the statute. Of course, this is of little comfort to a Nevada SLAPP victim if the plaintiff doesn’t provide an opportunity to remove the matter to federal court.
By J. DeVoy
An admittedly portly University of Iowa undergrad, Jordan Ramos, is accusing a local nightclub for refusing to let her dance on the bar. Simultaneously, if she had danced on the bar, fallen and been injured – she would almost certainly have sued the bar anyway. Either way, it is a frivolous claim. And, hopefully, a victory for the establishment, the Union Bar, on a motion to dismiss in either circumstance.
Jordan Ramos was denied the opportunity to stand atop a bar platform and dance for onlookers. In Las Vegas, nightclubs hire go-go dancers for this specific purpose. In Iowa City, the bars apparently take what they can get and even allow walk-ons. Ramos was denied the opportunity to scale the bar and dance atop it in March. When she returned to the bar in April, she once again was denied access to a dancing platform:
“[A bouncer] said, ‘You’re not pretty enough and you’re pregnant.’ I said, ‘I can tell you with 100 percent certainty that I am not pregnant.’ He then looked at my stomach and said, ‘You obviously are.’ They knew I was not pregnant; it was there way of calling me fat without having to actually say it,” Ramos said. (source)
Surely no woman inside a nightclub has ever lied; nor has pregnancy ever been the subject of untruth.
I do wonder if Ramos and any lawyer pursuing the claim will be sanctioned by a court if it is filed. The story raises a serious question as to whether she knows she had no claim against the bar:
Ramos approached the Human Rights Commission in Iowa City, but the organization told her they could not do an investigation because size discrimination is not illegal by law, Ramos said. (source)
If Ramos tells her attorney about the commission’s finding and he/she was aware of it at the time of filing suit, there’s a good argument for sanctions against Ramos and even her attorney. Even if filed pro se, Ramos’ action will force the bar to mount a defense and research why weight discrimination by a private company (even one offering a place of public accommodation) is not unlawful in Iowa – a few thousand dollars that can and should stay in the venue’s hands.
Who emboldened Ramos to do this stupid shit? Certainly not a lawyer, who like the Human Rights Commission would have done some research and seen that Iowa law does not outlaw size discrimination. No, it was a social work professor – someone who, true to the maxim, could not do social work, and thus opted to teach it instead:
A social work professor at the University of Iowa told Ramos to return to the bar.
“She told my friends and I to go back and see if the same thing happens and to try to get them to say aloud ‘I am not allowing you up because of your size,’” Ramos said. (source)
Sorry, dipshit; being “othered” is not a cause of action. This subthread to the story is another vignette justifying my intense dislike for social workers along with teachers as the scylla and charybdis of useless public sector jobs, leading hundreds of millions of dollars in public funds to a useless demise.
Every few years one of these disputes arise, and yet “face policies” persist. There are several reasons for this, the first being that state laws cannot reasonably adapt to subjective categories of discrimination such as “size” the way they can to objective standards like race, national origin and religion – making it difficult, if not impossible, to outlaw these other forms of discrimination. Additionally, they work. Why do people wait for hours and pay hundreds of dollars to get into Marquee, XS or Haze? Is it because they’re letting John and Jane Q Public in the door with flip-flops, unflattering clothing and an unseemly gait? Hint: No. Keeping out average people is a way to maintain exclusivity and charge supracompetitive prices for an utterly forgettable experience, converting admission to the venue into intangible social capital.
Unfortunately, the outcome of drunken people dancing on elevated surfaces normally is injury. While the bar may or may not be liable for the injuries dancers suffer from their activities, it’s easier to avoid litigation that will cost far more than this motion to dismiss to find out the contours of this responsibility. There are a number of facts that point in both directions, such as bouncers regulating who may or may not dance, as well as the provision of flat surfaces amenable to dancing (and the accepted practice of patrons doing so). While an imperfect policy, the bouncers did what they could: Screening for people who appeared to have the litheness and balance to dance without causing themselves injury.
Under California law, the venue’s actions arguably would be expressive conduct – the setting, enforcement and expression of a policy put in place for patron safety and bar profitability under Cal. Code of Civil Procedure § 425.16. A suit based on Ramos’ claims could face dismissal under California’s anti-SLAPP statute, and leave the aggrieved student to pay the bar’s legal fees – as she should. Iowa, however, has no anti-SLAPP statute at all.
As for Ms. Ramos, perhaps she should go to the gym before the courthouse. The world is not a nice place, and not every ugly duckling matures into a graceful swan. I do not complain about “discrimination” at the hands of bodybuilding competitions because I’d be laughed off the stage in spite of the time I spend in the gym. Her disappointment in life – and I believe there will be lots of it, given her seemingly hypersensitive leap to litigation in this instance – is not actionable.
EDIT: Re-reading the articles, I see there is no claim that a lawsuit has been filed, no reference to a case, and no docket number provided. Apparently there is no active litigation. So – why is this news?
By J. DeVoy
Earlier this week, Facebook announced its $1B acquisition of hipster staple Instagram. Everywhere you look, social media companies based on seemingly fragile social momentum are receiving gigantic valuations and making initial public offerings. Zynga has $8.8 billion in market capitalization – it’s best known for FarmVille, brogrammers and abusing trademark law. Groupon has lost more money than many firms will ever see, yet IPO’ed, reifying billions of dollars of wealth for shareholders.
Yet California does not have a monopoly on tech. In fact, California is absurdly expensive. Nevada, in contrast, is dirt cheap. And, based on the success of firms like SirsiDynix and Adobe in Utah – seriously, Utah – it’s clear that Silicon Valley does not have a stranglehold on programming and tech manpower. For all but the most elite developers, young workers will go where the work is – and even then, they will pursue the most challenging opportunities.
But this raises the question of why, exactly all of these wildly successful social media companies started in California. What is it about California? What is so profoundly different about the state that gives it a monopoly over these companies?
Maybe it’s one of the country’s best, oldest and most litigated anti-SLAPP statutes?
I know how much we like to wax poetic about the importance of 47 U.S.C. § 230 on this blog, and write about how liberating compliance with the DMCA is. But the reality is that if some unethical shithead wants to try to grab some cash from your pocket, he/she can and will sue you on utterly frivolous grounds – and if it happens in a state without a good anti-SLAPP statute, and especially a hellhole like Florida or New York, you’re going to just have to grin and eat the costs of proving, for the eightieth time, that the Roommates.com case and its § 230-vitiating FHA violations are in fact an extreme outlier.
That is, unless you live in a state like California with a kick-ass anti-SLAPP statute. Among others, I would include Washington, Oregon and Texas on the list of states with a good anti-SLAPP statute. I think, too, that Nevada can and should be one of these states.
There’s some really good stuff in Nevada’s anti-SLAPP statute. In October 2011, I wrote about the following provision, which gives a slight testosterone injection to California’s fee-shifting 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. (source)
However, this is all meaningless if it applies only to expression made to a governmental entity. If this statute is going to have teeth and apply to social networking services that are wrongly sued for third parties’ postings on them, the range of protected expression must be drawn more broadly. California and Texas provide some good examples of how to define this.
While Zynga, Groupon, Facebook, Google and many others that have yet to publicly reveal their wealth are Delaware Corporations, they all do business in California – and are protected by Cal. Code of Civil Procedure 425.16. Broad First Amendment protections. Mandatory fee shifting for a successful motion. Washington and Seattle-based Avvo Inc. are shaping up to be a similar success story, and a longer post about their recent anti-SLAPP victory is forthcoming.
An anti-SLAPP statute is not the cure-all for Nevada’s drive to diversify its economy, attract new businesses and encourage diversification. California’s (and specifically the bay area’s) success in social media is attributable to numerous covariants including an entrenched, educated and highly skilled workforce, fed by CalTech, Stanford and UC Berkeley. Silicon Valley is also host to a surfeit of venture capital and private equity firms; needless to say Las Vegas is not. However, flying from Las Vegas to SFO is at most a proposition of $200 and… 90 minutes? possibly less? This is hardly a barrier to innovation and financing.
The cynic in anyone who understands markets is that the latest tech bubble (perhaps more accurately, the social bubble) is exactly that – an inflated payout for the investors in these services. But good for them – they got paid, and you’re reading this blog. Who’s the idiot now? Regardless of how absurdly overvalued some of these services seem and doubtless are, billions of dollars in paper wealth are being created – and Nevada can capture some of it by making a small but important change to an existing law. Making Nevada a hospitable place for social media ventures will create or attract jobs to Nevada, especially economically battered and casino-reliant Southern Nevada, and enrich those companies’ employees. Like the Canadians in the South Park episode “Canada on Strike,” Nevadans must stand up and scream at their representatives: Give us Internet money!
As a tourism mecca, Las Vegas knows a lot about getting the world’s ultra-wealthy to leave a lot of their money here. By providing sufficient protections to new media businesses, the same dynamic can play out with the rich investing in new businesses, rather than a blackjack table.
(I have nothing against blackjack.)
Generally, Nevada’s Anti-SLAPP seems like a pansy-ass statute without much teeth. But some recent applications of NRS 41.635-70 give the Nevada version almost as much of a bite as California’s—the state regarded as having the best Anti-SLAPP statute in the country.
Last year, Clark County Court Judge Gloria Sturman dismissed a lawsuit against local real estate investors on behalf of collection agencies, applying NRS 41.660. The Defendant investors argued that the lawsuit was a SLAPP suit intended to gather information about a larger group of investors the collection agencies regularly did business with. Judge Sturman agreed, concluding that the plaintiffs failed to meet their to show the defendants had engaged in wrong-doing, and that the defendants’ communications with the Nevada Financial Institutions Division regarding the plaintiffs’ practices were “good faith communications in furtherance of the right to petition.”
What is most important, however, is the case that Judge Sturman’s order cites to. A few years ago, the Nevada Supreme Court had a very important case for NV’s Anti-SLAPP statutes: John v. Douglas County School Disctrict, 219 P.3d 1276 (2009). The appellant in the case was a school security officer who first faced suspension for unprofessional conduct and sexual harassment. The appellant filed a discrimination lawsuit against the school district respondent. About a year later, the school district found out that the appellant had improperly obtained confidential student records and, following an investigation, terminated him. The school district then filed a special motion to dismiss under NV’s anti-SLAPP statute. The Nevada Supreme Court upheld the district court’s dismissal, finding that the school district’s inquiry into the appellant’s record was appropriate.
The caselaw the Nevada Supreme Court turned to for its reasoning is what gives NV’s Anti-SLAPP a bit more kick. The Court states, “Nevada’s anti-SLAPP statute was enacted in 1993, shortly after California adopted its statute, and both statutes are similar in purpose and language,” and later, “When determining whether Nevada’s anti-SLAPP statute falls within this category, we consider California caselaw because California’s anti-SLAPP statute is similar in purpose and language to Nevada’s anti-SLAPP statute.”
The Court then goes on to draw parallels to California Anti-SLAPP cases, continuing to state that California’s statute is “similar in purpose and language.” California’s statute is by far the most protective in the country, so the parallels are promising for NV’s statute, which on its face seems rather weak.
Effectively, the case could help Nevada’s Anti-SLAPP law to evolve to be just as powerful as California’s— maybe it’s not such a pansy-ass statute after all.
By J. DeVoy
Anti-SLAPP laws come in two flavors: procedural and substantive. Substantive anti-SLAPP laws, such as the previously proposed federal anti-SLAPP law, provide qualified immunity for protected statements and create or crystallize the speaker’s rights. In contrast, procedural anti-SLAPP laws provide a mechanism to dispose of abusive litigation – normally with a Motion to Dismiss. The extent of these procedural protections vary from state to state; Massachusetts’ procedural anti-SLAPP law, for instance, cannot be applied in Federal Court. Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312 (D. Mass. 2003). Nevada’s anti-SLAPP statute, however, does not preclude its application in Federal court.
Like Massachusetts, Nevada’s anti-SLAPP laws are procedural, and is not restricted to use against state law claims. John v. Douglas County Sch. Dist., 125 Nev. Adv. Op. 55 (Nev. 2009), cert. denied, 130 S. Ct. 3355 (2010). The facts of that case, which warrant reading because of how strange they are, hinge upon a school district employee being suspended for harassing other employees and video taping special ed students, recording sexually explicit narrations to the videos that were then shown to others. Subsequent misconduct with confidential student records led the district to terminate John.
After exhausting EEOC remedies, John sued the school district in Nevada’s state courts, alleging violation of federal employment discrimination statutes. The school district moved to dismiss John’s Complaint under the anti-SLAPP statute. As John’s action was based on the school district exercising its right to communicate with the EEOC about a matter pending before it that concerned the district, the remedies in Nevada’s SLAPP statute were available. NRS 41.637.
The Nevada Supreme Court upheld the District Court’s dismissal. (N.B. – Nevada has no intermediate appellate courts.) The state supreme court expressly found that the anti-SLAPP statute can apply to substantive federal claims, as it “does not undermine any important, substantive federal interests.” Moreover, the court stated that Nevada’s anti-SLAPP statute is “procedural and neutral” in nature.
Nevada’s anti-SLAPP statutes still are limited to an unfortunate degree. However, the range of claims they can defend against – in the rare event the statutes can be applied – is quite broad. How this would play out in Federal court remains to be seen, as it creates a tension between Rule 56, state law and the Erie doctrine.
UPDATE: It used to suck. However, Governor Sandoval signed SB 286 into law, and therefore, now Nevada’s anti-SLAPP statute is awesome. See post here.
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.
By Marc J. Randazza
I’m not much of a prestige whore, but I’m not blind to the reality that Thomas M. Cooley Law School is a standalone punchline within the legal profession. I’m familiar with its absurdly large class sizes, its questionable practice of culling the bottom few percent of its students each year to ensure high enough bar passage rates to maintain its tenuous grasp on ABA accreditation, and its bizarre self-ranking system that places an inordinate emphasis on library seating capacity. After all, “[t]o study, a student needs a place to sit”! (source at xiv.) Also, if the NFL based its draft selections on US News-style rankings – if they applied to football programs – only 30% of NFL quarterbacks would be on a roster! Think that sounds like Bullshit? It’s a major rationale for Cooley’s student recruiting. Still confused? Welcome to Cooley Law.
Cooley is an abysmal institution. And, as a blind squirrel eventually finds a nut, and a broken clock is right twice a day, Cooley does accidentally drop decent lawyers into the system on occasion. However, the general public’s esteem for lawyers would improve above cockroaches and approach Nigerian e-mail scammers if this dump were to close its doors — at all four(!) campuses.
And as evidence that Cooley really is the Righthaven of law schools — I present to you this lawsuit it filed against four critical John Doe defendants is even worse.
Naturally, those who climbed up out of the Cooley garbage disposal, only to find themselves with a mortgage-sized chunk of non-dischargable debt and the indelible resume stain of a Cooley law degree, were a bit pissed at the school. So, a number of people – presumably alumni, former students, or even current ones – began posting at a blog titled “THOMAS M. COOLEY LAW SCHOOL SCAM.” This is the basis for Cooley’s lawsuit.
If the four defendants had asked me for pre-publication review, I would have advised them against making some of their statements without presenting supporting evidence. But that poses an even larger issue for Cooley: What if the people it’s suing for claiming the law school’s employees conceal their identities, and are on the take from financial institutions, are correct? Is Cooley ready for discovery relating to the alleged investigation of “serious Title IV violations”?
Plain and simple, this is a SLAPP suit. If Cooley were in California, Oregon, Texas, or DC, the Doe defendants would be looking at a healthy payday from Cooley, and would have pro bono representation lined up around the block. Alternatively, if Rep. Steve Cohen had his way in enacting a federal anti-SLAPP statute, the defendants would have that protection at home. But because this action is pending in Michigan, the defendants have no such recourse. Hopefully they won’t have to retain Cooley grads to defend them!
It’s out of character for me to dump on law schools and their graduates out of prestige concerns. But Cooley truly is on a level all its own in embodying all that is wrong with legal education. At the very beginning of its Complaint, Cooley brags about having the largest enrollment and four campuses, as if this is a mark of accomplishment. Harvard and Georgetown have large law school enrollments – but they also send many of their students, and likely the preponderance of them, onto gainful employment – or employment period.
Can Cooley say that more than half of its graduates in any given year are employed in the law, or at all? If someone is accusing your nationally mocked law school of being a scam, perhaps bringing a lawsuit over such allegations isn’t the best way to disprove them. The louder one screams about something, the more likely it is to be the truth – and allegations of “lur[ing]” students to a school so they may be “prey[ed]” upon isn’t something that should be dignified, let alone potentially substantiated, with a lawsuit — if it’s untrue.
Even if the allegations against Cooley are false — so what? They’re anonymous comments on a blog that are not going to be heralded as being immutable reality. If the comments are true, then this is the dumbest thing Cooley could ever do. Considering how many members of Cooley’s faculty are school alumni, though, is it any surprise nobody advised the school otherwise?
This lawsuit is a heinous crime against free expression. May an even worse pox than the one currently afflicting it befall that institution for turning the courts into an instrument to beat down free speech and censor the reality that everyone – including many jobless and hopeless Cooley alumni – knows to be true: Cooley sucks.
Read the Complaint.
By Marc Randazza
Sarah Palin always seems to be talking about families. Despite bashing that door open, she takes such umbrage when anyone mentions her own. So, When writer Joe McGinniss starts digging for facts and sources to complete his book “The Rogue: Searching for the Real Sarah Palin,” what does Sarah do? She lawyers up and threatens to sue… you betcha!
If this strikes you as unseemly – a former governor and vice presidential candidate who clings to whatever relevance she has left by making noise about seeking the presidency and touting her unfortunately named family, threatening to sue for investigative journalism about her background – then congratulations: You’re not a mendacious piece of shit.
The United States Constitution is quite clear on this issue: Public figures must prove actual malice (i.e., knowing falsity or a reckless disregard for the truth) to prevail in a defamation action. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). This is a particularly applicable when the public figure is also a politician, and the speech addresses matters of public concern – namely someone’s fitness for office and prior conduct when wielding (and abusing) executive power. See Boos v. Barry, 485 U.S. 312 (1988); Connick v. Myers, 461 U.S. 138 (1983). This kind of political speech is the most highly protected by the constitution and the very lifeblood of a functioning democracy. Consider this quote from the “God Hates Fags” case.
Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011), citing Tex. v. Johnson, 491 U.S. 397, 414 (1989).
If the Constitution provides such strong protection for the Westboro Baptist Church spewing its stupidity and hate, is there any doubt about reporting on a politician’s fitness for office? Of course, but there is no need to invoke the highest ambitions of the Constitution and the lofty rhetoric that accompanies them. Sarah Palin is a bully, and not a very smart one, so we’ll keep this in terms she and any her attorney can understand. Her legal threats can be debased by the law within Alaska’s boundaries, without having to look outside the state – to Russia or elsewhere.
Alaska is no stranger to the public figure doctrine. Lowell v. Hayes, 117 P.3d 745, 751 (Alaska 2005); Mt. Juneau Enters., Inc. v. Juneau Empire, 891 P.2d 829, 834-35 (Alaska 1995). In Lowell, the plaintiff sought declaratory relief determining that the defendant had defamed him, arguing that the actual malice standard would not apply to such an action — as it had only been used in actual defamation claims in the past. The Alaska Supreme Court soundly rejected this argument. Lowell, 117 P.3d at 757.
In Mount Juneau, the Alaska Supreme Court adopted the test used to determine whether a plaintiff is a public figure in Gertz v. Robert Welch, Incorporated, 418 U.S. 323, 345, 351 (1974). The Mount Juneau court articulated its criteria thusly:
For the most part those who attain this [public figure] status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
[The public figure] designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby become a public figure for a limited range of issues.
So let’s go down the checklist. Roles of especial prominence in the affairs of society? Former governor, former vice presidential candidate, and on-again, off-again presidential hopeful. Check. Occupy positions of “such persuasive power and influence” that she is a public figure for all purposes? I can escape her state, but cannot avoid her on television, in the bookstore or in the hackneyed catchphrases of soccer moms. Sadly, that’s power – and the worst kind. Check. Thrusting (heh) herself to the forefront of public controversies? CHECK CHECK CHECKITY CHECK. That’s exactly what got her here – and now that she can’t get her and her idiot kids to relinquish the spotlight, she thinks she can sue it away. Not quite, Sarah.
Whether by the designs of others or her own half-witted ambition, Palin is undoubtedly a public figure under Alaska law. And while the speech promulgated by McGinniss and other investigators is of interest to everyone, it is of particular interest to the poor souls known as Alaskans, as so much of Palin’s scrutinized past relates to her mismanagement of the state.
This is to say nothing of the Streisand Effect, though that ship likely has sailed. If there is anything we don’t know about Sarah Palin, we’re going to find out, as she carries the burden of proving the statements about her are false. Mt. Juneau, 891 P.2d at 835; see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 11-17 (1990). If Palin cannot prove that the statements she objects to in the book are false, she’s going to have a lot of problems trying to tamp them down in the future – and, indeed, her failed defamation crusade may open new investigations and speculation about the half-term former governess.
Indeed, even under Alaska’s laws, Palin has a steep hill to climb:
Actual malice involves a subjective inquiry into a speaker’s intent — specifically, whether he knew that his defamatory statement was false or recklessly disregarded the possibility of its falsity. A plaintiff must prove by clear and convincing evidence that the declarant acted with knowledge of the statement’s falsity or in reckless disregard of the statement’s truth or falsity. To show that a declarant recklessly disregarded the truth or falsity of published material, a plaintiff must show that the declarant entertained serious doubts as to the truth of the publication. A defendant’s failure to make a prior investigation into the accuracy of published statements does not, by itself, constitute actual malice. Neither does a defendant’s incorrect usage of a key term or word whose meaning is reasonably disputed. Thus, the actual malice standard is a difficult one to satisfy.
Lowell, 117 P.3d at 751 (internal quotations and citations omitted).
In short, it looks like Palin’s threatened litigation is about as viable as her presidential campaign. But, God bless her misguided heart, don’t let that stop her. If Alaska had an anti-SLAPP statute, I would not merely refrain from discouraging this litigation, I’d dare Palin to bring it.