Sunday, May 11, 2003
Copyright © Las Vegas Review-Journal

COLUMN: Thomas Mitchell

Don't let yourself get slapped around

People always seem to be quibbling over the rule book.

Etch Ten Commandments in stone, and someone will find an out. Thou shalt not kill ... except in self defense or time of war or ...

Sure the Constitution guarantees free speech ... except for shouting fire in a crowded theater, threatening someone with physical harm, revealing classified information, assorted political incorrectness, libel and slander, etc.

We are free to speak our minds so long as we have true grit, a good lawyer and deep pockets.

A couple of legislative sessions back, state Sen. Joe Neal pushed through a law that adds a little ballast to the listing ship of jurisprudence, making Nevada one of 20 states with what is called an anti-SLAPP law.

SLAPP is the fitting acronym for Strategic Lawsuits Against Public Participation.

It's been a popular and effective technique in recent years. If you are engaged in some public controversy and the other guy appears to be getting the upper hand, find some trivial offense and file suit. The threat of years spent in time-consuming and agonizing depositions and hearings, as well as prodigious legal expenses, will chill anyone's ardor for continued debate.

Nevada's anti-SLAPP law protects anyone engaging in "good faith communication in furtherance of the right to petition." (By the way, that is one of the five rights spelled out in the First Amendment that keeps getting overlooked: the right "to petition the government for a redress of grievances.")

So, if you write a letter to the editor about some piece of hare-brained legislation or circulate a petition or merely speak your mind and get sued over it, this law gives you the right to an expedited court hearing and even representation by the attorney general or the district attorney. If you prevail, you may recover compensatory damages, punitive damages, attorney fees and court costs.

The law has seldom, if ever, been used in Nevada, though California's version gets such a regular workout it can kick sand in your face.

But now one Las Vegas law firm -- Don Campbell and Colby Williams -- has invoked the state anti-SLAPP law twice in the past couple of weeks.

In one case, a nonprofit group calling itself Safe Homes Nevada was sued for libel by a housing developer over an item posted on its Web site.

Safe Homes' members are lobbying against proposed legislation that would change the state's home construction defect law. They had posted on the Web site a list of 120 cases in which home defects were alleged. The list was copied from the public record of a hearing of the state's Construction Industry Task Force. In every one of the 120 cases the record indicated the homebuilder failed to offer to make requested repairs.

It turns out, that was correct in only 119 cases. So, homebuilder DR Horton sued, claiming defamation.

The other case involves County Commissioner Mark James, who is balking at a housing development being proposed near the Red Rock Canyon Conservation Area by builder Jim Rhodes. Rhodes has sued him, saying lawyer James has a conflict of interest because he had given him advice.

In both cases, Campbell and Williams have countered with the anti-SLAPP law. A hearing on the Safe Homes case is scheduled in a couple of weeks, but only a few days before the Legislature is to sine die.

Who knows how either of these cases will turn out.

In a motion in the Safe Homes case, Campbell makes a strong argument for the value of anti-SLAPP laws as a buoy to free speech: "In practical effect, the present action seeks to impose strict liability upon defendants simply for being wrong in hindsight. This result is anathema, especially where, as here, the alleged error occurs in a discourse on matters of public concern. Were such lawsuits allowed `free' speech would only be as free as the strength of the speakers' nerve and the depth of his pocketbook."

Thomas Mitchell, editor of the Review-Journal, writes a column on the role of newspaper and the First Amendment. He may be reached at 383-0261 or via e-mail at tmitchell@reviewjournal.com.