First Amendment attorney Marc Randazza championed a groundbreaking law in Nevada that went into effect on October 1, 2013. Journalists, bloggers, and anyone that believes in the U.S. Constitution should rejoice. Any Nevadan that publishes a truthful article based on any topic of public interest is now immune from frivolous and vexatious lawsuits due to Nevada’s new anti-SLAPP law. If a lawsuit is ruled by a judge to be a Strategic Lawsuit Against Public Participation (SLAPP) it is immediately tossed without ever going to trial, according to numerous articles published on the topic, including one from the Randazza Legal Group.
Marc Randazza published an article about his legal group’s road to victory in the Nevada Legislature. Others followed his lead to celebrate the news (examples are here and here).
The previous version of Nevada’s anti-SLAPP law may have only applied to political speech and the right to petition. This meant that someone that successfully defended protected First Amendment speech might have to go through the hardship of a trial before being able to recover attorney’s fees and costs. That has now changed since the scope of Nevada’s anti-SLAPP was expanded to include anything pertaining to “free speech in direct connection with an issue of public concern”, according to the points made in the above linked articles and other legal advice.
The new law now includes this language:
A person who engages in a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern is immune from any civil action for claims based upon communication.
Speech related to the gaming industry should fall under a topic of public interest due to NRS 463.0129, which begins:
NRS 463.0129 Public policy of state concerning gaming; license or approval revocable privilege.
1. The Legislature hereby finds, and declares to be the public policy of this state, that:
(a) The gaming industry is vitally important to the economy of the State and the general welfare of the inhabitants.
(b) The continued growth and success of gaming is dependent upon public confidence and trust that licensed gaming and the manufacture, sale and distribution of gaming devices and associated equipment are conducted honestly and competitively, that establishments which hold restricted and nonrestricted licenses where gaming is conducted and where gambling devices are operated do not unduly impact the quality of life enjoyed by residents of the surrounding neighborhoods, that the rights of the creditors of licensees are protected and that gaming is free from criminal and corruptive elements.
(c) Public confidence and trust can only be maintained by strict regulation of all persons, locations, practices, associations and activities related to the operation of licensed gaming establishments, the manufacture, sale or distribution of gaming devices and associated equipment and the operation of inter-casino linked systems.
(d) All establishments where gaming is conducted and where gaming devices are operated, and manufacturers, sellers and distributors of certain gaming devices and equipment, and operators of inter-casino linked systems must therefore be licensed, controlled and assisted to protect the public health, safety, morals, good order and general welfare of the inhabitants of the State, to foster the stability and success of gaming and to preserve the competitive economy and policies of free competition of the State of Nevada.
The immunity described in the new anti-SLAPP law means that if a judge determines that a defamation lawsuit is unlikely to prevail due to it being protected free speech, it immediately gets tossed. There is no trial. The entire process is over and the aggressor will pay the accused all attorney’s fees and costs related to the case.
The anti-SLAPP statute does not stop at just immunity and attorney’s fees. Defendants that prove that they were a victim of a SLAPP suit can be awarded up to $10,000 in damages immediately, in addition to reasonable attorney’s fees.
The court may award, in addition to reasonable costs and attorney’s fees awarded awarded to paragraph (a), an amount up to $10,000 to the person whom the action was brought.
Government attorneys can get involved too.
The Attorney General or the chief legal officer may or attorney of a political subdivision of this State may defend or otherwise support the person whom this action is brought.
They may not choose to do so, but if they do:
The court shall award reasonable costs and attorney’s fees to the person whom the action was brought, except that the court shall award reasonable costs and attorney’s fees to this State or to the appropriate political subdivision of this State if the Attorney General, the chief legal officer or attorney of the political subdivision or special counsel provided the defense for the person pursuant to NRS 41.660
Once a SLAPP is dismissed:
The person against whom the action is brought may bring a separate action to recover:
- Compensatory damages
- Punitive damages; and
- Attorney’s fees and costs of bringing the separate action
The law exists to discourage frivolous lawsuits and I cannot put into words how important this is.
It appears to apply to some federal cases. Nevada’s anti-SLAPP law was applied in a New York Federal Court ruling earlier this week. That case involved a Nevada party.
It is not that I want someone to be punished with these damages, I want these lawsuits to cease to exist. Everyone deserves First Amendment protection without fear. I hope the potential damages and costs associated with lawsuits attempting to silence critics discourages this type of action forever.
Every person and company makes mistakes. A simple apology goes a long way and countless companies have come out looking great by taking the proper route when their issues are made public. In my opinion, this is what sets a great company apart from its competitors. A company that chooses to threaten its critics will not go far. I feel this is especially true in my industry where transparency is imperative.
The current US interactive gaming environment requires the licensing of all officers and companies. This includes affiliates. Groups that have operated unethically in the unregulated industry may have issues getting licensed. Any company that manages to sneak in the back door could suffer a massive backlash. We already saw this with iovation.
Nevada is a great state that believes in the First Amendment and all freedom associated with the US Constitution. I am proud to be a resident.
Not a Lawyer Disclaimer
I am not a lawyer and this should not be taken as legal advice. It is simply a celebration of free speech. This article is based on other articles and discussions with an attorney about the law. Always get legal advice from qualified legal experts.
Why did I write this? (Updated)
A month or so before the Anti-SLAPP went into effect, I busted a company known as 180Vita of publishing plagiarized content on its PokerUpdate site. They decided that instead of removing the content they published word for word from other sources without attribution or permission, they would send a lawyer after me. They didn’t delete the copied content until I called them out at Two Plus Two for it.
It is absurd to think someone would rather send a lawyer after someone than do the right thing, but that is how some people in my industry operate. They have never apologized for their behavior, but tried to bully me into publicly apologizing to them for the articles I published about their company. They even tried to get me to put in writing that I would never write about them again.
While I regrettably backed down because I did not have time for their behavior and the Anti-SLAPP was not live yet, I wasn’t going to sign my rights away.
Had they filed their lawsuit, it would have been a waste of time and money to defend. Nevada’s Anti-SLAPP law should discourage them from using any such tactic in the future.
You can read more about the nonsense involving Jamie Nevin and 180Vita.