A screenshot of my testimony before the Nevada Assembly Judiciary Committee on April 24, 2015 in opposition of SB444.
In April, I discovered that Nevada’s powerful anti-SLAPP law, passed during the previous legislative session, was under attack. I immediately went on the defensive.
The bill was SB444. The Nevada Senate passed it by a 21-0 margin. It happened without any debate. Nevada Sen. Tick Segerblom told political journalist Jon Ralston that Democrats were “asleep at the wheel.” This left the Nevada Assembly as the last line of defense.
Why Nevada’s Anti-SLAPP Law Matters
Anti-SLAPP laws are designed to protect citizens from abusive lawsuits aimed solely to silence critics. If you read my work, you know that I have covered some controversial topics. This includes exposing online gambling scams and companies that steal my copyrighted work. I’ve been threatened by attorneys over it. One example of that is here. That is not the only time.
After the 2013 version of Nevada’s anti-SLAPP law went into effect, I was able to confidently tell an attorney that threatened me that I lived in Nevada. This lawyer was trying to use me as leverage in an attempt to intimidate a colleague. I provided a link to Nevada’s powerful anti-SLAPP law in my response to the legal threat and told the attorney to stop contacting me. It was a polite middle finger. I never heard from him again.
Under the law I fought to save, I don’t have to worry about someone filing a frivolous lawsuit against me in an attempt to punish me for my opinion or stating facts. If a Nevada resident’s speech is protected by the First Amendment, a court should toss cases filed by anyone that tries to sue for defamation. If a case is ruled to be a SLAPP, the plaintiff would be forced to pay court costs, as well as monetary damages up to $10,000. A successful anti-SLAPP defendant in Nevada can also file a separate action to recover additional compensatory damages, punitive damages, and attorney’s fees and costs of bringing this separate action. That seems like quite a deterrent to me.
You may not think that these lawsuits are a big problem, but there are numerous people and companies out there that do such a thing on a regular basis. Most states have little or no protection from these types of vexatious lawsuits.
Yelp explained why anti-SLAPP laws are important to its business model. The company and its content contributors have been forced to defend lawsuits based on reviews posted on Yelp. This scenario could happen to any website that allows comments, regardless of whether the Communications Decency Act applies. Most states have no laws that punish plaintiffs in frivolous defamation lawsuits. Nevada is one of the few that does. This type of protection is imperative to media companies and individuals that wish to exercise their First Amendment rights.
Phone Calls and Emails Went Out Immediately
When I heard that Nevada’s anti-SLAPP law was in trouble, I started contacting Nevadans that I knew would be interested. I received a response from most of those that I contacted. It helped generate support for the cause. Several of the people that I contacted testified against SB444 in person. Others submitted public comment.
Road Trip to Carson City
I decided to go to Carson City and speak in person to lawmakers. I testified in front of the Assembly Judiciary Committee on my second day in Carson City. While the camera view suggests otherwise, the room was packed.
Admittedly, I was incredibly nervous before going up to the podium. That disappeared when my turn came to speak. I nailed it.
I spoke about why the anti-SLAPP law is important to my business and to the gaming industry. I used examples of my journalism to show why my work should be protected from frivolous lawsuits.
I told the committee that a change in Nevada’s anti-SLAPP law could force me to relocate my business to Texas, my first choice among other states with a real anti-SLAPP law. I also explained that tech businesses would no longer consider Nevada to be a friendly environment, even with its tax advantages, as the lack of legal protections would offset it.
The Assembly Judiciary Committee did not act on the bill at the time. On the last day of business before the bill would have died, it passed a watered-down version to the full Assembly. I was not happy about it, but it seemed like a reasonable compromise.
Washington State Supreme Court Struck Down Similar Law
This turned out to be a blessing in disguise. The Washington State Supreme Court struck down a nearly identical law two weeks later. The court took issue with the “clear and convincing” evidence standard in the Washington law. Nevada’s anti-SLAPP law had the same language. If the bill had died in committee, the potentially faulty language could have been impossible to correct during the session, leaving the law vulnerable to a court challenge.
The Nevada Legislature was able to change the language before the session expired on June 1. It took a conference on the last day to pull it off.
What I Learned From the Experience
I learned that if there is a bad bill out there that affects your freedom or business, you can do something about it. It does not matter how powerful your opposition is. Everyone has a chance to speak their mind and state lawmakers will listen, especially when there is massive opposition among the citizenry.
If you have allies out there, get them aligned. Several of the people I talked to were unaware of the bill’s existence at the time. Once they knew about it, they were happy to get involved.
The numbers mattered. Public comment was 213-3 against. There were 17 voices heard in opposition before the committee, with only outside counsel for Wynn Resorts supporting it. I feel these numbers were a contributing factor as to why we prevailed in getting the bad language in SB444 removed. With that said, attacking the other side on a personal level was not an appropriate action. I tried to distance myself from that tactic.
I also learned that the Nevada lawmakers that I interacted with were genuinely interested in the bill and my opinion. Many asked great questions at the committee hearing that showed their familiarity and concerns with the bill.
First Amendment supporters were able to take on a large gaming corporation in Nevada and win. It was not just press agencies and members. The Motion Picture Association, the Sierra Club, First Amendment attorneys, and about a half-dozen concerned citizens spoke out in opposition to SB444.
We Won’t Be Asleep at the Wheel Next Time
The Nevada Legislature only meets every two years. I will be scouring the bills in 2017 to make sure nothing like this has been filed. If it is there, I will once again go to Carson City and testify as to why Nevada’s anti-SLAPP law is so important to the people of our state, my company, and our ability to attract tech companies. Hopefully we have a federal anti-SLAPP law by then.
The SPEAK FREE Act was recently introduced in Congress. For now, the only effective state anti-SLAPP laws on the books are in Texas, Nevada, California, and Oregon. Hopefully the Washington Legislature fixes that law that was struck down.
Residents of other states have little recourse if someone attempts to stifle their free speech through litigation other than spend tens or hundreds of thousands of dollars defending themselves or cave in to the threats. That is unfortunate for those active in politics or on consumer review sites.
Some states have anti-SLAPP laws that only cover political speech or cases filed in state court, but not federal court. That is better than nothing, but still leaves room for improvement. I am willing to go to Washington D.C. to testify in favor of a federal anti-SLAPP law. Contact me at firstname.lastname@example.org if you are interested in making that happen.