This document discusses two Nevada Supreme Court cases that helped clarify and strengthen Nevada's anti-SLAPP law:
1) Shapiro v. Welt (2017) upheld the constitutionality of Nevada's anti-SLAPP statute and adopted California's standard for what constitutes a matter of public interest.
2) Adelson v. Harris (2017) addressed the fair report privilege and found that hyperlinking to source materials about judicial proceedings can qualify under the privilege. It also clarified how Nevada's pre-2015 anti-SLAPP law applied.
Together, these cases helped define the scope of Nevada's anti-SLAPP protections and affirmed its strong defenses for speech on issues of public concern.
This document discusses two Nevada Supreme Court cases that helped clarify and strengthen Nevada's anti-SLAPP law:
1) Shapiro v. Welt (2017) upheld the constitutionality of Nevada's anti-SLAPP statute and adopted California's standard for what constitutes a matter of public interest.
2) Adelson v. Harris (2017) addressed the fair report privilege and found that hyperlinking to source materials about judicial proceedings can qualify under the privilege. It also clarified how Nevada's pre-2015 anti-SLAPP law applied.
Together, these cases helped define the scope of Nevada's anti-SLAPP protections and affirmed its strong defenses for speech on issues of public concern.
This document discusses two Nevada Supreme Court cases that helped clarify and strengthen Nevada's anti-SLAPP law:
1) Shapiro v. Welt (2017) upheld the constitutionality of Nevada's anti-SLAPP statute and adopted California's standard for what constitutes a matter of public interest.
2) Adelson v. Harris (2017) addressed the fair report privilege and found that hyperlinking to source materials about judicial proceedings can qualify under the privilege. It also clarified how Nevada's pre-2015 anti-SLAPP law applied.
Together, these cases helped define the scope of Nevada's anti-SLAPP protections and affirmed its strong defenses for speech on issues of public concern.
However, as with many changes in furtherance of the right to free
to an existing statute, the amendments speech regarding an issue of public public participation (SLAPP) left a gap. New precedent has emerged concern pursuant to NRS 41.637. is a lawsuit instituted to to fill that gap, clarifying and contouring The district court granted the motion intimidate and silence critics the law’s application. That clarification to dismiss, finding that the website began in earnest in 2017, first with was a “communication regarding (effectively censoring them) Shapiro v. Welt, 133 Nev. Adv. Op. 6 an ongoing lawsuit concerning the by burdening them with (Feb. 2, 2017) and then in Adelson v. rights of an elderly individual, and excessive legal fees and Harris, et. al., 133 Nev. Adv. Op. 67 a matter of public concern under (Sept. 27, 2017). NRS 41.637.” Howard appealed, costs of defense until they arguing, among other things, that the abandon their criticism or Welt, Constitutionality and statute was unconstitutionally vague opposition. Nevada’s anti- the Public Interest and that the statements regarding the conservatorship action did not SLAPP statute (NRS 41.653- In Shapiro, the Nevada Supreme constitute an issue of public interest. 670) affords defendants in Court dealt both with a direct challenge As a preliminary matter, the to the constitutionality of the statute, Nevada Supreme Court found that the SLAPP lawsuits a strong and with questions concerning what statute was constitutional, because it countermeasure: a motion constitutes a matter of public interest provided sufficient notice to a person to dismiss filed under the under NRS 41.637(4), the category “of ordinary intelligence exactly what of expression that the statute protects conduct [was] prohibited.” However, statute can quickly (and with and the scope of the absolute litigation where the Shapiro case made its no burdensome discovery) privilege. In response to appellant greatest impact concerning the statute vindicate the speaker’s rights, Howard Shapiro’s underlying attempts was in its express adoption of the to become the conservator for his California standard of what constitutes resulting in dismissal with father, respondents published a website an issue of public interest, as set forth prejudice. And—critically— that, among other things, contained in Piping Rock Partners, Inc. v. David the statute shifts the burden allegations regarding Howard’s past Lerner Assocs., Inc., 946 F. Supp. of paying the defendant’s debts, criminal history and alleged 2d 957, 958 (N. D. Cal. 2013), aff’d, maltreatment of his father. Howard 609 F. App’x 497 (9th Cir. 2015). legal fees back onto the party filed a lawsuit in Nevada, alleging California first enacted its anti-SLAPP unlawfully suing. defamation per se and related causes statute in 1992 and, since then, has of action. The respondents filed an developed one of the largest bodies The 2015 amendments to the anti-SLAPP motion to dismiss in of case law among states with similar statute made Nevada’s law one of response, arguing that the website statutes. Nevada’s statute was modeled, the strongest anti-SLAPP laws in the constituted a good-faith communication at least in part, on California’s statute.
8 Nevada Lawyer November 2018
In adopting Piping Statute then in effect. Adelson appealed report privilege protected the petition, the Rock Partners, the Nevada to the U.S. Court of Appeals for the Nevada Supreme Court also found that Supreme Court found Second Circuit, which affirmed most of the petition satisfied the requirement that that the public interest the district court’s ruling, but certified it be a fair and accurate description of the “does not equate to mere certain questions of state law to the official proceeding. curiosity” and “should Nevada Supreme Court. Following the Nevada Supreme be something of concern First, the Second Circuit asked if Court’s decision answering the certified to a substantial number hyperlinking to source material about questions in NJDC’s favor, the Second of people.” Additionally, judicial proceedings was sufficient Circuit affirmed the dismissal under both the challenged statements to qualify as a report for purposes Rule 12(b)(6) and the Nevada Anti-SLAPP should be somewhat close of applying the fair report privilege. Statute and, on remand, the federal district to the asserted public Second, the Second Circuit sought court awarded NJDC roughly $2 million in interest. As the lower court an interpretation of the Nevada Anti- attorneys’ fees and costs under the Nevada had not expressly reviewed SLAPP Statute prior to its amendment, Anti-SLAPP Statute. the statements within the including whether that prior version of context of the Piping Rock the statute applied to speech that was not Anti-SLAPP in 2018 Partners factors, the case directed at a government official, and and Beyond was ultimately remanded whether NJDC’s petition qualified as a for further proceedings, “communication aimed at procuring any Nevada’s anti-SLAPP law provides where the case was governmental or electoral action, result strong protections for individuals, ultimately dismissed via the respondent’s or outcome.” As this issue had been including those who fairly and accurately renewed anti-SLAPP motion. previously decided while the certification report on matters of public interest, proceedings were pending, the court especially those related to judicial summarily referred the Second Circuit to proceedings. The Adelson court’s Adelson, Attribution and a prior Nevada Supreme Court opinion. embrace of modern methods of attribution the Fair Report Privilege (particularly hyperlinks) suggests that See Delucchi v. Songer, 133 Nev. Adv. Later in 2017, the en banc Nevada Op. 42, 396 P.3d 826, 830 (2017). the law of defamation and the statute’s Supreme Court issued its decision in The Nevada Supreme Court application will likely grow and adapt Adelson. Although it interpreted the pre- examined the remaining certified alongside the technical evolution in online 2015 version of the statute, its ruling is question, weighing whether or not the communications. instructive in proceedings filed under the fair report privilege protects an internet Public discourse, particularly as current version of the law. communication that in turn draws embodied by the press, is a critical part During the 2012 presidential of governance in America. The current information from an underlying report election cycle, the National Jewish social and political landscape makes of judicial proceedings available to Democratic Council (collectively, the it more important than ever that all the public. First, the court reaffirmed NJDC) posted an online petition calling citizens—journalist or not—be free to the absolute nature of the fair report upon Mitt Romney to reject campaign openly, honestly and lawfully comment privilege and formally adopted the fair contributions from appellant Sheldon on the world around them. Nevada’s report privilege test set out in Dameron v. Adelson. The petition contained a strong anti-SLAPP protections, coupled Wash. Magazine, Inc., 779 F.2d 736, 739 hyperlink to an Associated Press (AP) with Nevada’s clear application of the fair (D.C. Cir. 1985). The court examined the article that discussed then-ongoing report privilege, serve as a bulwark against nature of hyperlinks and found that they litigation between Adelson and Steven lawsuits that would otherwise dissuade or Jacobs. The AP article further provided can possess inherently strong attribution qualities, providing readers with penalize those who would appropriately a summary of, and quoted from, a sworn exercise their First Amendment rights. declaration submitted by Jacobs in that immediate access to determine whether underlying case, alleging certain facts official proceedings were implicated. about Adelson’s strategy for operating The court described hyperlinks as “the Las Vegas native JUSTIN his Macau casino resorts. Based on that twenty-first century equivalent of a A. SHIROFF is an attorney petition, Adelson filed a defamation footnote.” The court ultimately found at Ballard Spahr LLP, where suit against the NJDC and two of its that the NJDC petition’s hyperlink to the he practices media and officials in the U.S. District Court for the AP story—itself a summary of existing entertainment law, representing a judicial proceedings—was sufficient wide range of clients seeking to protect Southern District of New York, which to qualify for the fair report privilege. their rights under the First Amendment, in turn determined that Nevada law The court cautioned that hyperlinks that as well as Nevada’s Public Records Act. governed the controversy. The New York Shiroff graduated with honors from the court dismissed Adelson’s complaint are in some way hidden or otherwise inconspicuous might not impart the William S. Boyd School of Law at UNLV under both Federal Rule 12(b)(6) and and formerly served as Nevada Law the version of the Nevada Anti-SLAPP appropriate notice. In finding that the fair Editor for the Nevada Law Journal.