Marco Randazza SLAPPS back

My brother-from-another-mother Marc Randazza is obsessed these days, and understandably, with an attack on anti-SLAPP statutes, particularly the one in Nevada:

I get at least one call a week from someone who wants me to file a defamation claim. I turn almost all of them away, because most of them are either frivolous, or just don’t have a good chance of winning, or they will backfire on the Plaintiff.

At least once a month, one of them says something to the effect of “I don’t care if I win, I just want to bury this guy.” They dangle very large checks in front of me.

My answer is “I don’t use my law license that way. Might I suggest you retain a more ethically flexible lawyer.”

When the potential plaintiff in that situation is looking at filing in a state with an Anti-SLAPP act, they usually don’t bother at all after I explain the ramifications of an Anti-SLAPP motion. . . .

But someone didn’t like that.

Therefore, last week, in a pretty sneaky legislative maneuver, the Nevada Senate Judiciary Committee slid through Senate Bill 444. The bill is a paragon of sleaze. It starts off with preamble statements that make itseem like it is there to protect freedom of expression, but once you read it, you realize that whoever drafted this must have done so with the clear intent of destroying the Anti-SLAPP law.

  • It creates a Rube Goldberg mechanism for bringing an Anti-SLAPP motion — which will clearly increase the cost of litigation. 
  • It narrows the definition of “issue of public concern” – so consumer reviews, social commentary, and other forms of important public speech are now outside of its protection.
  • It weakens the attorneys’ fees provisions of the existing law.
  • It lowers the burden for unethical plaintiffs to keep their SLAPP suits alive.
  • It repeals important provisions that seek to deter plaintiffs from filing anti-SLAPP suits in the first place.
  • It is tailor-made to ensure that public figures do not have to be worried about New York Times v. Sullivan at the SLAPP stage, anyhow.
  • It virtually ensures that you can’t ever bring an Anti-SLAPP motion in federal court.

Marc is not happy.

Intended effect not achieved

His [NSFW] blog and his tweets have been obsessed with this business, and who can blame him.

Now I’m not the fan of anti-SLAPP laws that Marco is, and regular Mickey Mouse Club members will recall this readily; I most recently explained why in this post about just how aglay the best of anti-SLAPP intentions can gang, almost have to, in fact, once the machinations of that marvelous human endeavor called litigation are unleashed.

But what Marc describes in his recent series of posts about the legerdemain in Nevada — the sneaky legislative tricks, the subterfuge, the patent political dishonesty — deserves broader attention and condemnation.  Because while reasonable men might disagree about what policy to have, there’s nothing reasonable, or even legitimate, about pretending to have one policy but calling it something completely different.

Marc’s right.  What happens in Nevada might not end up staying in Nevada, and even if it does, there’s still Nevada, after all — that still counts for something, doesn’t it?

Ron Coleman

I write this blog.