The Evolving Anti-SLAPP Laws - The Writ

In 1993, the Nevada Legislature passed the State’s first statute to protect from liability persons who are sued for making good-faith communications regarding matters of public concern. Since that time, the statutory scope has expanded and the standards have changed regarding protections from what are known as Strategic Lawsuits Against Public Participation (“SLAPP”). The anti-SLAPP statutes, found in NRS 41.635, et seq., are largely based on California law and seek to ensure that, in Nevada, individuals are uninhibited in exercising their free speech rights regarding issues of concern to the public.

 Anti-SLAPP Procedure

 The anti-SLAPP statutes allow someone who is sued for making 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” to file a special motion to dismiss early in the litigation. NRS 41.637. Analysis of the motion involves a two-prong burden-shifting approach. NRS 41.660.

In Prong 1, the moving party has the burden to prove by a preponderance of the evidence the statement for which they were sued satisfies the “good-faith” and “matter of public concern” standards. If the district court determines that the moving party satisfied this burden, it must then – in Prong 2 – “determine whether the plaintiff has demonstrated with prima facie evidence a probability of prevailing on the claim.” NRS 41.660(3)(b). 

Denial of the special motion to dismiss is immediately reviewable by the Supreme Court through an interlocutory appeal. NRS 41.670(4). Dismissal of the action operates as an adjudication on the merits and is therefore appealable as a final judgment. NRS 41.660(5).

In the last year, the Nevada Supreme Court issued three published opinions interpreting the most recent version of the anti-SLAPP statutes.

Governmental Entity Defendants Cannot Bring An Anti-SLAPP Motion To Dismiss

Clark County v. 6635 W Oquendo LLC, 140 Nev. Adv. Op. 15 (2024), involved a lawsuit against Clark County for imposing civil penalties and recording liens against a property for code violations. The County filed a special anti-SLAPP motion to dismiss, which the district court denied. On appeal, the Supreme Court affirmed, holding based on the definition in NRS 0.039, that a governmental entity is not a “person” entitled to bring an anti-SLAPP motion.

Courts Must Look At The Communication, Not The Type Of Claim, To Determine The Anti-SLAPP Statute’s Applicability

Panik v. TMM, Inc., 139 Nev. Adv. Op. 53 (2023), involved claims for trade libel, misappropriation of trade secrets, conversion, injunctive relief, abuse of process, and alter ego liability. The district court denied an anti-SLAPP motion to dismiss on the basis that these claims “do not fall within the categories of claims subject to the anti-SLAPP statute.” The Supreme Court reversed, holding that the statute can apply to any cause of action. The critical analysis requires the district court to focus on the challenged statements that give rise to the claims, not the claims themselves.

A Public Figure Defendant Must Meet Its Burden By Clear And Convincing Evidence

In Wynn v. The Associated Press, et al., 140 Nev. Adv. Op. 6 (2024), the Supreme Court elucidated the burden in Prong 2 when the plaintiff is a public figure. The case involved claims brought by a well-known gaming executive against a reporter for publishing allegations of sexual assault contained in a complaint to the police. The Court held that to overcome an anti-SLAPP motion to dismiss, a public figure defamation plaintiff must provide sufficient evidence for a jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice. Because the sufficiency of the evidence of actual malice is an issue of law, the Court concluded that requiring the clear-and-convincing standard in response to an anti-SLAPP motion to dismiss does not violate a public figure’s constitutional right to a jury.

Conclusion

Anti-SLAPP jurisprudence is an ever-evolving area of law that receives considerable attention from the Legislature and the Supreme Court. Practitioners should keep tabs on the latest iterations of the law.