In 2013, Nevada passed the best Anti-SLAPP law in the country. Under this law, NRS 41.660-670, when someone files a lawsuit designed to stifle First Amendment protected expression, that lawsuit gets thrown out quickly, and that lawsuit comes with a price tag for the censorious plaintiff.
The law strikes a good balance too – it still allows for valid lawsuits designed to protect a person’s good reputation. I handle lawsuits on both sides, plaintiff and defendant, and I have never feared an Anti-SLAPP law in California or Nevada, when putting my signature on a complaint. Why? Because I don’t file frivolous defamation claims. I don’t care how much money the potential client wants to give me.
Recently, a Los Angeles-based self-proclaimed “Leading Entertainment Industry Defamation/1st Amendment Attorney” (source) decided that he didn’t like the law. I invite anyone to help me find any evidence that this self-proclaimed title is accurate. Of course, that statement is sort of vague, so perhaps it is “true.” I mean, he leads someone right?
Oh, wait, I found one thing he might have “led.” Wynn v. Chanos. I can’t tell if he was lead counsel, or just one of the attorneys. But, in that case, the plaintiff (Steve Wynn) filed a lawsuit over statements that were found, as a matter of law, to be non-defamatory.
Now a lot of people do not like Steve Wynn. I do not count myself among them. I can understand how Wynn might call up his attorneys and say “I’m upset at these statements, do something.”
You know how I can understand?
I can understand because I get those same calls from my clients, and potential clients, all the time.
I’m not a wealthy lawyer. I make ok money, so please don’t leave any canned goods or unwanted clothes at my office. But I’m sure that my income is nowhere near this “Leading” attorney’s income. I bring that up because I can assure you that I could change my life significantly if I started saying “yes sir” to more people who want to file unsupportable defamation claims.
But, I never have.
That’s not to say that I haven’t filed them and lost. I lost one, once. Someone accused a client of mine of publishing child pornography. He said “it appears to be child porn.” The court ruled that the word “appears” qualified the statement enough to make it protected. I did not agree, but fair enough. That was in a state that had an Anti-SLAPP statute. The claim did not get SLAPPED down, it just got dismissed. Why? Because it was a losing case, but not a total garbage case. It was a fair argument. The end.
I’ve been approached by many potential clients who have what they think is a good defamation case. I explain defamation law to them. I haul out books and cases and talk them through it. Usually, I explain to them that they have no case at all. Sometimes they take that, thank me, and move on. But, a few times a year, someone has gobs of money and wants me to have some of it. They say something to the effect of this:
“Listen, I don’t need to win. You know that 90% of cases don’t go to trial. We just need to file it, get past the motion to dismiss, and then start digging into their finances and emails in discovery. They won’t want that, and they’ll cave in.”
My answer to that is “I do not use my law license that way, I suggest you find yourself a more ethically flexible lawyer.” I then usually give them a few names of people who I find to be ethically flexible, and wish them the best of luck.
I don’t know what conversation took place between Mr. Wynn and his “Leading” lawyers before he filed the Chanos case. I do know what conversation should have taken place though.
It should have been this: “Mr. Wynn, I get it. You have every right to be upset. Your feelings are valid. But, these statements are not legally defamatory. The lawsuit will make you look worse than the statements, so I advise that you use whatever money you wanted to use on a defamation claim, and put it to more constructive use.”
I get it. It is not easy to say “no” to a billionaire. I am sad every time I say “no” to a millionaire. For you math-challenged people, a billionaire is a THOUSAND times richer than a millionaire. In other words, think of anyone you know who has a million bucks in the bank. They are not even a speck to a billionaire.
I sure wish I could just say “screw it, I’ll do it, sir.”
Imagine the money I could make. Instead of defending the under-funded defendants, instead of slashing my rate to make sure that people can keep expressing themselves, I could just say “screw it, pay me.”
I can’t do that. There’s this pesky thing called the Constitution, and I took an oath to uphold and defend it.
This isn’t to say that I won’t take a risky case. The “appears to be child porn” case? I knew that had a chance of losing. I don’t mind losing a case. In fact, any lawyer who says “I never lost a case” isn’t a bad ass. That’s a lawyer with no balls, who never took on a risky one.
So we’ve established that the Chanos case was garbage — well, the court did that for us.
So how did this “Leading” attorney react?
Well, he came up with the notion that Nevada’s Anti-SLAPP law “goes too far.” He claims he came up with it all on his own. He says that nobody is paying him to lobby to gut the law.
But to my main point – Senate Bill 444 will knock Nevada’s Anti-SLAPP law back to a useless level. Rather than SLAPP laws rolling across the country, as they have been, this will be the first time a legislature guts an Anti-SLAPP law.
And if you live in a state where you yearn for one, think about what this means. Think about the implications.
If you’re in a state where you could be hit with an ignoble SLAPP suit, do you want your legislature to take up the cause? Don’t you think your local bullies will want to oppose you? If we lose ground here in Nevada, that gives your local bullies a foothold.
The loss of liberty anywhere is the loss of liberty everywhere. So, even if you’re outside our little piece of desert here in Nevada, you should be concerned about what happens to Senate Bill 444.
So far, I’m happy to say, that it seems like most of the legislators who really examined this law are opposed to it. It got snuck through the Senate without any real debate. But, once the State Assembly started looking at it, the public started speaking.
And none of those voices are in favor of SB444.
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