Anti-SLAPP bill goes too far, foes say

Press associations, ACLU want to keep current law

CARSON CITY — A bill that proponents say would bring balance to a law protecting the free speech rights of critics from punitive and meritless defamation lawsuits was opposed Friday by representatives of the press and other First Amendment advocates.

Senate Bill 444, which was drafted on behalf of Wynn Resorts Ltd., would make several important changes to Nevada’s anti-SLAPP law that supporters say are needed to allow individuals who are legitimately defamed to have a chance to prove their cases in court.

SLAPP lawsuits, an acronym meaning strategic lawsuit against public participation, are aimed at stifling free speech when individuals speak out on public issues.

SB444 would change the level of proof needed to win a case from “clear and convincing” to a lesser standard called “prima facie.” It would amend the antiSLAPP statute to cover issues of public concern but not issues of simple curiosity.

Nevada’s law was strengthened in the 2013 Legislature.

But Mitchell Langberg, outside counsel to Wynn Resorts and an expert on anti-SLAPP statutes, said the bill went too far in favor of defendants in defamation actions. Plaintiffs who are defamed also have the right to protect their reputations in court, he said.

The “sky is falling” claims by opponents to the bill are not true, Langberg said.

SB444 would change the level of proof needed to win a case from “clear and convincing” to a lesser standard called “prima facie.” It would amend the anti-SLAPP statute to cover issues of public concern but not issues of simple curiosity.

It would also allow some limited discovery of evidence to support a defamation claim and remove a provision allowing additional compensation when a person is wrongfully sued and

R-J columnist Smith testifies against bill

wins a dismissal of a lawsuit.

Senate Judiciary Chairman Greg Brower, R-Reno, said, “if you want to engage in defamation with impunity we have a pretty good law.” But SB444 would create a more balanced process, he said.

The measure sailed through the Senate with a unanimous vote and no opposition.

It was heard Friday by the Assembly Judiciary Committee, which took no immediate action on the measure.

Opponents acknowledged they missed the import of the bill when it was heard in the Senate.

Las Vegas Review-Journal columnist John L. Smith testified against the bill, saying he has personal knowledge of casino developer Steve Wynn’s efforts to punish journalists or others who report factual information about his business activities.

Smith was sued by Wynn after a book he wrote, “Running Scared: The Life and Treacherous Times of Las Vegas Casino King Steve Wynn,” was published in 1995. Smith was removed from the case, which was based on a catalog summary of the book and not the book itself, and ultimately the lawsuit against the book publisher was thrown out by the Nevada Supreme Court.

“He never won a dime,” Smith said of Wynn. “But he inflicted a lot of pain on me and my family.” Smith’s book is still in print. Nevada has one of the best anti-SLAPP laws in the country, and weakening it would just give powerful people the ability to bully journalists and others in the exercise of their free speech rights, Smith said.

The bill also was opposed by the Nevada Press Association, the American Civil Liberties Union of Nevada and the Washington, D.C.-based Reporters Committee for Freedom of the Press.

Marc Randazza, an attorney who helped draft the 2013 statute, also testified in opposition, saying SB444 “is an ignoble attempt to eviscerate our law. It was proposed by an out-of-state lawyer who is reeling from anti-SLAPP loss in an unsupportable defamation suit.”

SB444 “drops Nevada from the gold standard to one that makes its protections lower than any other state in the union,” he said in his prepared testimony. “SB444 takes Nevada from first to worst.”

Las Vegas attorney Allen Lichtenstein testified in opposition, saying no one can point to some egregious result stemming from the current law that would warrant the changes in SB444. “It’s all kind of hypothetical,” he said. But Langberg said cases are not filed in Nevada because they cannot win under the current statute.

Wynn was recently involved in a defamation lawsuit where California’s anti-SLAPP statute resulted in the case being dismissed. Wynn sued for slander in federal court in California against hedge fund manager Jim Chanos for comments made at a symposium that included the statement of Chanos’ uncertainty “about the questionable business methods in Macau.”

Wynn was represented by Langberg, but the lawsuit was dismissed in March with prejudice meaning it cannot be refiled. The decision is being appealed. Contact Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Find him on Twitter: @seanw801