Nevada Anti-SLAPP Law under attack

After reading this, if you are against SB 444, come back and click here: Choose SB 444, and voice your displeasure to this anti-freedom and anti-business bill.

Anti-SLAPP statutes are there so that free expression doesn’t come along with a side helping of bankruptcy, if your speech offends the wrong person.

They don’t protect you from liability for real defamation, but they do protect you from being dragged through three years of litigation over a claim that never should have been brought in the first place.

You see, that’s how the bastards win. If they don’t like your political speech, or even your mild consumer review, they file a lawsuit against you. You try and file a motion to dismiss, but as long as they lay out the elements of the claim in the complaint, that doesn’t usually work. Next, discovery. Motions. Hearings.

Thousands of dollars later, you “win.” But, you’re now wondering “if this is what winning feels like…”

And that’s the point. A SLAPP suit is one that a Plaintiff files against someone, knowing they won’t win, but they don’t care. The point of it is to punish you with attorneys’ fees, and to scare anyone else who might speak in a way that you don’t like.

Much of the blame falls on unethical attorneys. If we didn’t have those, these cases would never happen. But, we do have them. We have lots of them. They care more for making a buck than upholding the Constitution.

I get at least one call a week from someone who wants me to file a defamation claim. I turn almost all of them away, because most of them are either frivolous, or just don’t have a good chance of winning, or they will backfire on the Plaintiff.

At least once a month, one of them says something to the effect of “I don’t care if I win, I just want to bury this guy.” They dangle very large checks in front of me.

My answer is “I don’t use my law license that way. Might I suggest you retain a more ethically flexible lawyer.”

When the potential plaintiff in that situation is looking at filing in a state with an Anti-SLAPP act, they usually don’t bother at all after I explain the ramifications of an Anti-SLAPP motion. I explain to them that if they have a good defamation case, they have nothing to fear. When the case is anemically weak, and brought for the most part to punish someone for expressing themselves, they’re going to need to avoid California, Oregon, Washington, Nevada, Texas, and DC courts. In fact, even filing a claim like that against a citizen of one of those states in another jurisdiction can wind up stinging the plaintiff.

When I explain that, I usually get an expression of gratitude — even when the potential plaintiff is of the “just use all my money to hurt this guy” variety. I help them dodge a bullet. (But, if our anti-SLAPP law goes away, I’m gonna make BANK!)

You see, Anti-SLAPP statutes are a good form of tort reform. They kill off frivolous claims that would otherwise chill free speech. They are a pretty amazing species of law, because they are pro-consumer *and* pro-business.

Pro consumer is easy to see. Pro business? Yes, really.

Before Nevada had a real Anti-SLAPP law, my advice to any media company was “move your business to Washington, it has the best Anti-SLAPP law in the country.”

When Nevada passed its best-in-the-nation Anti-SLAPP law in 2013, that made Nevada really attractive to tech companies and media companies. I changed my tune immediately, and I managed to convince a handful of them to move to Nevada. Why? If you want to run a consumer review site, or a social networking site, or even just a blog, you know very well that at some point, you’re going to get threatened with a defamation suit. And, ultimately, if you’re in a state where there is no Anti-SLAPP protection, you’re going to get sued.

Would you rather run your company in a state where you know that you can get slammed with a SLAPP suit by someone with more money than you, and an attorney of questionable ethics? Of course not. You want to be in a state that protects you.

Nevada largely adopted Washington’s Anti-SLAPP law, with a few local tweaks. It was great, but it didn’t chill reasonable defamation claims. In fact, the first defamation case I was involved in after it passed was on behalf of a plaintiff. The law left plenty of room to seek redress for real defamation claims, but it turned the heat up on those who would abuse the judicial system.

But someone didn’t like that.

Therefore, last week, in a pretty sneaky legislative maneuver, the Nevada Senate Judiciary Committee slid through Senate Bill 444. The bill is a paragon of sleaze. It starts off with preamble statements that make it seem like it is there to protect freedom of expression, but once you read it, you realize that whoever drafted this must have done so with the clear intent of destroying the Anti-SLAPP law.

It creates a Rube Goldberg mechanism for bringing an Anti-SLAPP motion — which will clearly increase the cost of litigation.

It narrows the definition of “issue of public concern” – so consumer reviews, social commentary, and other forms of important public speech are now outside of its protection.

It weakens the attorneys’ fees provisions of the existing law.

It lowers the burden for unethical plaintiffs to keep their SLAPP suits alive.

It repeals important provisions that seek to deter plaintiffs from filing anti-SLAPP suits in the first place.

It is tailor-made to ensure that public figures do not have to be worried about New York Times v. Sullivan at the SLAPP stage, anyhow.

It virtually ensures that you can’t ever bring an Anti-SLAPP motion in federal court.

One public figure lost an Anti-SLAPP motion, and he sent his lobbyist to buy a repeal of Nevada’s law. You see, he owns a casino. He doesn’t want criticism. And, he doesn’t care if Nevada has a diversified economy — in fact, he benefits if Nevada doesn’t have a diversified economy. (And “he” isn’t Sheldon Adelson, for those who have been speculating on that).

If you live in Nevada, you should be outraged. And, you should damn well show up to the Assembly Judicary Committee meeting on Friday, April 24 at 8:00 AM. (AGENDA HERE) If you can make it to Carson City, to look the Assembly members in the eye, that would be best.

If you can’t make it to Carson City, then you can come to the tele-conference at the Room 4406 of the Grant Sawyer building – 555 E Washington Ave, Las Vegas. Be there early, because I would expect this bill to come up first. Also, don’t be surprised if there is a “surprise” change of room. Come with prepared statements to read into the record.

If you can’t make it to either session, then you need to call, send emails, and send letters to the Assembly Judiciary Committee Members. These are, by and large, good people who care. They won’t vote for this bill if they know what it really is about. I think the Senate Committee got duped, because they didn’t know what was in the bill that they rubber stamped.

What if you’re not even in Nevada? You still should care, and do what you can. Why? Do you think that this kind of thing will stop in Nevada? I’ve been involved in debates over whether California’s Anti-SLAPP act ought to be repealed too. If they can get away with it here, your home state’s statute could be next. Or, if you live in a state without an Anti-SLAPP act, do you think that the tide turning out in the desert will help you or hurt you get one in your home state?

And, if you live in Nevada, you should start writing campaign contribution checks. Elections here are not that expensive, and I would encourage you to write a check to the opponent of any Assembly member who votes for this bill. I wouldn’t blame the Senators. When you look at the pathetic level of debate here, you can see that there was very little in the way of debate. Give them the benefit of the doubt. But now, the Assembly Judiciary Committee will be informed. If they still decide to put a knife in the gut of free speech and business development in Nevada, they don’t belong in Carson City.

I release all copyright in this post, and you may feel free to appropriate it to whatever extent you like – whether you give me credit or not. Plagiarize away, if you like.

Other coverage:

Popehat: Why Are Nevada State Senators Trying To Eviscerate The State’s Anti-SLAPP Statute?

TechDirt: Nevada May Be About To Lose Its Great Anti-SLAPP Law