Yet ANOTHER editorial against SB444

April 24, 2015

The Las Vegas Review Journal points out that the polls are showing that Nevadans oppose Senate Bill 444 by more than 100 to 1. See Will Assembly serve the elite or the masses?


Nevada Senate Bill 444 – Groundhog Day

May 27, 2015

On SB444 – Wynn Resorts’ lobbyist proposed a compromise. The compromise was reasonable. We might not have liked it, but there was no reason not to agree to the compromise.

The Senate did not agree to the compromise.

Now it is back to the Assembly. But, the Assembly has been a bipartisan body of reason on SB444.

How you can help stop SB444.

1. Go to this page.

2. Enter “SB444” without any spaces or use the drop down menu and scroll aa.

3. Click the “Get Bill Information” button.

Make sure you comment on SB444 (not AB) and choose the April 14 version from the drop down menu.

Make sure you comment on SB444 (not AB) and choose the April 14 version from the drop down menu.

4. Type in your comments.

5. Enter your name and address, which is kept confidential.

6. Click submit.

What if you don’t want to post a comment using your real address?

No problem.

You can signal boost this article or any other articles on Twitter under the #SB444 or #StopSB444 hash tags.

Click here to go to Twitter to signal boost articles opposing censorship.

Even better – write to your assembly member or to Governor Sandoval

To write to your Assembly Member, follow these steps:

1. Find out who your assembly member is by using this interactive map.

2. Or look here – if you already know.

3. Write them an email or a letter about how you feel toward SB444

If you want a short tutorial on the different sides of this debate, watch below:

My Testimony

And this is the guy pushing to gut Nevada’s Anti-SLAPP law.

(Note, this is an edited version. My prior version was vituperative and immature, and I have edited it to remove those elements)


Senate Bill 444 – Now With Video!

April 27, 2015

In Nevada, Senate Bill 444 stands to repeal all the effectiveness of the Nevada Anti-SLAPP Law.

If you’ve read this blog at all in the past two weeks, you know that I have been a small part of the chorus of voices that rose up against this ignoble and unethical bill.

Last Friday, I testified at the Assembly Judiciary Committee hearing on the bill in Carson City. I’m happy to report that, if the mood in the room is any indication, that the Assembly members are siding with the Constitution, Freedom of Expression, Economic Development, and Liberty.

My Testimony

And this is the guy pushing to gut Nevada’s Anti-SLAPP law.

How you can help stop SB444.

1. Go to this page.

2. Enter “SB444” without any spaces or use the drop down menu and scroll aa.

3. Click the “Get Bill Information” button.

Make sure you comment on SB444 (not AB) and choose the April 14 version from the drop down menu.

Make sure you comment on SB444 (not AB) and choose the April 14 version from the drop down menu.

4. Type in your comments.

5. Enter your name and address, which is kept confidential.

6. Click submit.

What if you don’t want to post a comment using your real address?

No problem.

You can signal boost this article or any other articles on Twitter under the #SB444 or #StopSB444 hash tags.

Click here to go to Twitter to signal boost articles opposing censorship.

Even better – write to your assembly member

How?

1. Find out who your assembly member is by using this interactive map.

2. Or look here – if you already know.

3. Write them an email or a letter about how you feel toward SB444

4. Even though this bill is through the Senate already, it can’t hurt to send a letter to your Senator too. They are listed here.

Why write to your senator, when the bill already passed the Senate? Because it might pass the Assembly in an amended form. If that happens, it goes back to the Senate. The Senators were not informed when they passed this the first time around. You can help inform them this time.

(If you want the full testimony, without the commentary, it is available here)


Nevada’s Senate Bill 444 – it matters even to Non-Nevadans

April 26, 2015

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.

Mmmmkay.

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.

How you can help stop SB444.

1. Go to this page.

2. Enter “SB444” without any spaces or use the drop down menu and scroll aa.

3. Click the “Get Bill Information” button.

Make sure you comment on SB444 (not AB) and choose the April 14 version from the drop down menu.

Make sure you comment on SB444 (not AB) and choose the April 14 version from the drop down menu.

4. Type in your comments.

5. Enter your name and address, which is kept confidential.

6. Click submit.

What if you don’t want to post a comment using your real address?

No problem.

You can signal boost this article or any other articles on Twitter under the #SB444 or #StopSB444 hash tags.

Click here to go to Twitter to signal boost articles opposing censorship.


Nevada Anti-SLAPP Law under attack

April 19, 2015

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