In 2013 Nevada passed the strongest anti-SLAPP statutes in the United States. This statute was muscular. Not only did it cover a wide array of speech, and require substantial proof of the potential validity of a claim, it had frills like a potential $10,000 penalty on top of attorney fees for SLAPPers and a private cause of action so targets of SLAPP suits could sue their tormentors. My friend and colleague Marc Randazza, First Amendment badass, helped frame it, which is why it was so strong. It's already proven effective in Nevada's courts. It's an excellent tool to protect free speech from meritless lawsuits.
So who in the Nevada Senate Judiciary Committee is trying to kill it, and why?
The Nevada Senate Judiciary Committee proposed Senate Bill 444, and the senate just voted unanimously to approve it. Now it's up to the Assembly, and the Governor. I hope they stop it, because it's a complete disaster. Senate Bill 444 takes Nevada's superior anti-SLAPP statute and renders it very substantially less effective:
- The statute previously applied to the broadest possible array of speech, meaning it could be used to defend all sorts of defamation (and other speech-targeted) claims on matters of public interest. SB 444 narrows the protection to speech on an "issue of public concern," meaning "any topic that concerns not only the speaker and the speaker's audience, but the general public, and is not merely a subject of curiosity or general interest." If you have no idea what that actually means, you're not alone. There's a real danger it will deprive defendants of anti-SLAPP protection when they've written about some relatively obscure hobby or issue or concern. There's also a danger that it will be used to exclude consumer reviews on Yelp and similar sites from the protection of the statute.
- SB 444 dramatically changes the deadlines for an anti-SLAPP motion. The existing law — as in most states — allows a motion within 60 days of service of the SLAPP suit. SB 444 reduces that to 20 days — a very short period to find a lawyer and have that lawyer brief a potentially complex issue.
- Under the existing statute, if a defendant shows that a lawsuit is aimed at speech covered by the statute, the burden shifts to the plaintiff to establish that they can prevail on the claim by submitting evidence. Though the statute refers to "clear and convincing" evidence, cases have interpreted it to mean only specific and non-speculative evidence. SB 444 changes the language, requiring the plaintiff to make only a "prima facie case." To non-lawyers, that means simply offering any evidence which, if accepted at face value, could support a claim. It's not clear how the Nevada courts will interpret the meaning of that change, and how a plaintiff's burden will be reduced. Moreover, SB 444 specifically excuses the plaintiff from offering any evidence of "subjective intent or knowledge of the defendant." In other words, the plaintiff doesn't have to have any evidence suggesting that the defendant knew or should have known a statement was false. This dramatically reduces the plaintiff's burden in opposing an anti-SLAPP motion.
- Under existing law, a prevailing defendant is entitled to fees. If the motion is denied, the plaintiff is entitled to fees if the court finds that the motion is frivolous or vexatious. SB 444 changes that to require a fee award to a plaintiff who defeats an anti-SLAPP motion if the court finds that the motion was filed "in bad faith" or without "reasonable basis." That inquiry is much cloudier and unpredictable than an inquiry into frivolousness, and will deter defendants from filing close-call motions.
- SB 444 eliminates the court's ability to award up to $10,000 penalty on top of attorney fees, and eliminates the cause of action against someone who files a SLAPP suit. That substantially reduces the deterrent effect of the statute.
If you were a lawyer representing defamation plaintiffs — from businesses suing Yelp reviewers to aggrieved subjects of social criticism — this would be the bill you'd draft to undermine Nevada's anti-SLAPP statute. Is that what happened? Which specific Nevada State Senator introduced the bill, and whose water was that senator carrying? Why are the senators trying to reduce free speech protections so dramatically in Nevada?
I don't know. But if anyone knows Nevada politics and politicians, I'd like to find out, so I can write about it. If you care about effective anti-SLAPP statutes, you might write to Nevada State Senators asking why they killed the anti-SLAPP statute, or write to the Assembly members asking them to stop it.
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