EDITORIAL: Bill to enable intimidation through lawsuits a slap at free speech

Keeping free speech truly free requires protections beyond the First Amendment. The Bill of Rights prevents governments from restricting expression; it does nothing to stop private parties from dragging you into court if you criticize them, much less slander or defame them.

That’s where Nevada’s tough anti-SLAPP law comes in. The law, strengthened by the Legislature in 2013, prevents strategic lawsuits against public participation — baseless litigation filed for the sole purpose of quieting lawful criticism or chilling debate. SLAPP cases are dangerously effective when the plaintiff has unlimited resources and lawyers at its disposal and the defendant has none.

Nevada’s anti-SLAPP law discourages such intimidation through litigation in two important ways. First, it requires plaintiffs to quickly provide clear and convincing evidence of its claims. Second, it not only awards court costs and attorney fees to defendants who are wrongfully sued and win dismissal, it awards defendants penalty compensation for their trouble. The tough burden of proof, the protection against drawn-out proceedings and the potential financial penalties are powerful deterrents to vindictive claims against the press and the public.

But the Legislature is moving fast to shred the state’s anti-SLAPP protections, revisions that would benefit the powerful at the expense of Nevadans’ core freedoms. And Senate Bill 444, already passed by the Senate, has a powerful champion: billionaire gaming executive Steve Wynn.

During an April 6 Senate Judiciary Committee hearing on the bill, the only testimony was provided by Wynn Resorts representatives. The company’s outside counsel, Mitchell Langberg — Mr. Wynn’s defamation attorney — pitched the bill as a fix to a law that’s too broad. Coincidentally, those broad provisions prevent wealthy bullies from attacking people who dare to question them.

SB444 would amend Nevada’s anti-SLAPP law by erasing the provision that provides defendants with penalty compensation; by shifting the burden of proof to defendants and requiring them to show a plaintiff’s claims are false; and by giving plaintiffs more time for discovery, which would ensure that claims take longer to litigate and are capable of bankrupting defendants.

“The bill is tailor made to facilitate SLAPP suits,” First Amendment attorney Marc Randazza told Review-Journal columnist John L. Smith. “It doesn’t just gut the law, it completely reverses its polarity. It’s sneaky and pernicious.”

Mr. Wynn has a track record of suing people who dare to criticize him. He recently lost a lawsuit against a hedge fund manager who questioned casino business practices in Macau, thanks to California’s anti-SLAPP statute. Mr. Wynn clearly wants his Nevada lawyers to get more work, or at least put the state’s pundits on notice to have good counsel on retainer.

The Senate quickly passed SB444, which will be heard by the Assembly Judiciary Committee on Friday. Unlike the Senate hearing, Friday’s meeting will feature testimony from people who don’t answer to Mr. Wynn — people who understand and can articulate the damage SB444 would do to free speech.

SB444 is an abomination of the worst kind: a juiced bill pushed by a powerful campaign donor to create bad public policy. The Assembly Judiciary Committee should give it a fatal slap.