J. PAUL OETKEN, District Judge:
This is a defamation action filed by Sheldon G. Adelson arising out of the 2012 presidential campaign. Adelson has sued David A. Harris, Marc R. Stanley, and the National Jewish Democratic Council ("NJDC") (together, "Defendants") for libel based on a publication on NJDC's website. Defendants have moved to dismiss this lawsuit pursuant to the District of Columbia Anti-SLAPP Act of 2010, D.C.Code § 16-5501, et seq. — or in the alternative the Nevada Anti-SLAPP Act, Nev.Rev.Stat. § 41.635 et seq. — as well as Federal Rule of Civil Procedure 12(b)(6).
For the reasons that follow, the Court concludes (1) that Nevada law applies to this case; (2) that Adelson has failed to state a claim for libel because (a) Defendants' publication is protected as a fair report of a judicial proceeding, which was properly attributed through its use of hyperlinks, and (b) the publication otherwise consists of constitutionally protected opinion; (3) that Defendants' publication was also protected by the Nevada Anti-SLAPP statute, and accordingly Adelson is ordered to pay Defendants' attorney's fees and costs.
The following facts are, unless otherwise indicated, drawn from the allegations in the Complaint (see Dkt. No. 1 ("Compl.")), which are presumed true for purpose of this motion.
Adelson is a successful businessman and a prominent member of the Jewish Community. He is the Chairman and CEO of Las Vegas Sands Corp. ("LVSC"), a Nevada corporation with its principal place of business in Nevada. LVSC is the owner of, among other things, the Venetian Casino in Las Vegas, Nevada. LVSC has also built casinos in various other locations, including in the Chinese territory Macau.
During the 2012 election cycle, Adelson became a well-known supporter of Republican candidates. For much of the Republican Party presidential primary campaign, he was a highly visible financial supporter of Speaker Newt Gingrich. Later, he became a supporter of Governor Mitt Romney. Adelson also provided financial support to other Republican candidates during the 2012 election cycle.
NJDC is a 501(c)(4) non-profit organization whose mission is to increase Jewish support for Democratic candidates. NJDC's principal place of business is in the District of Columbia. (Harris Decl. at ¶ 5.) Harris is the President and CEO of NJDC, and a citizen of the District of Columbia. (Id. at ¶ 2.) Stanley is NJDC's Chairman and a citizen of Texas. (Id. at ¶ 3.)
The final individual relevant to this lawsuit is Steven C. Jacobs, a former executive at LVSC's subsidiary Sands China Limited ("SCL"), who was fired for cause in 2010. After his termination, Jacobs sued LVSC, SCL, and Adelson in District Court, Clark County, Nevada, alleging, inter alia, breach of contract. (See Dkt. No. 20 ("Strom Deck"), Ex. 28 ("Jacobs Amend. Compl.").) On June 27, 2012, the afternoon before a status conference in Jacobs v. Las Vegas Sands Corp., Jacobs filed a declaration, ostensibly identifying gaps in the defendants' production regarding the issue of personal jurisdiction ("the Jacobs Declaration"). In that declaration, Jacobs averred that "LVSC Senior Executives informed me that the prior prostitution strategy had been personally approved by Adelson." According to Adelson, Jacobs knew this statement was false when he made it.
On July 3, 2012, in the midst of the presidential campaign, NJDC published a statement concerning Adelson on its website ("the Petition"). (See Compl. Ex. A ("Petition").) The Petition, authored by Harris, was entitled "Tell Romney to Reject Adelson's Dirty Money." It contained a graphic of Adelson and Governor Romney side by side, with the following rhetorical question written across it in large, capital letters: "IF ONE OF YOUR BIGGEST DONORS WAS ACCUSED OF PUTTING `FOREIGN MONEY' FROM CHINA IN OUR ELECTIONS & REPORTEDLY APPROVED OF PROSTITUTION, WOULD YOU TAKE HIS MONEY?" Below this was a link to an online NJDC petition "TELL[ING] MITT ROMNEY TO STOP TAKING MONEY FROM SHELDON ADELSON." Below the graphic, the Petition stated as follows:
As will be evident to those with experience navigating the Internet, each segment of blue, underlined text contained a hyperlink, which, when clicked, connected the Petition's reader to a particular article. Relevant here is the
The AP Article also notes that "Adelson and the company deny wrongdoing," and quotes a statement issued by LVSC spokesman Ron Reese that "Mr. Adelson has always objected to and maintained a strong policy against prostitution on our properties and any accusation to the contrary represents a blatant and reprehensible attack on Mr. Adelson's character...."
The Petition was on the NJDC website from July 3, 2012 to July 11, 2012. During that period, the Petition was republished on other websites and in the print press. For example, on July 6, 2012, the Jewish Press published an article entitled "NJDC Calls on Romney to Return `Adelson's Tainted Money Immediately,'" which quoted at length from the Petition. (See Compl., Ex B.)
On July 11, 2012, Defendants withdrew the Petition from NJDC's website.
On July 11, 2012, NJDC published a press release, authored by Harris and Stanley, entitled "Statement Regarding NJDC's Adelson Petition" ("the Press Release"). (Compl., Ex. C ("PR").) The Press Release was also published on NJDC's website, where it remains visible to this day. See http://www.njdc.org/ media/entry/adelson071112. The Press Release, only two paragraphs in length, reads as follows:
Shortly after the publication of the Petition, Defendants were informed by Plaintiffs attorney that the Petition was false, and that the Jacobs Declaration contained knowing falsehoods. (Compl. ¶¶ 64, 65; see also Compl., Ex E. ("Clayton Ltr.") (noting that "[o]n July 11 ... [Defendants] were contacted by a representative of Mr. Adelson who told you that your charges are false....").) Harris was also contacted by Alan Dershowitz, a professor at Harvard Law School and a close friend of Adelson, after the publication of the Petition but before the publication of the Press Release. (Dkt. No. 64 ("Dershowitz Decl.").) Dershowitz informed Harris that the accusations in the Petition were false and that "the ultimate source of the prostitution allegation, Steve Jacobs, himself did not believe Mr. Adelson had approved of prostitution." (Id.)
Adelson filed this action on August 8, 2012. (Compl.) On September 21, 2012, Defendants filed motions to dismiss pursuant to Federal Rule 12(b)(6) and pursuant to the District of Columbia Anti-SLAPP Act. (Dkt. No. 18 ("Defs.' Mem.").) On November 9, 2012, Plaintiff opposed the motions to dismiss. (Dkt. No. 29 ("Pl.'s Opp'n.").)
On November 9, 2012, Plaintiff filed a motion to strike portions of Defendants' Memorandum of Law as well as portions of the Declaration of Rachel F. Strom. (Dkt. No. 28 ("Pl.'s Mem.").) On November 19, 2012, Defendants opposed Plaintiffs motion to strike. (Dkt. No. 30. ("Defs.' Opp'n.").) Plaintiff replied on December 4, 2012. (Dkt. No. 36 ("Pl.'s Rep.").)
Oral argument on the pending motions was initially held on December 17, 2012. On March 6, 2013, this Court held a telephonic conference, in which the parties were asked to brief the issue of how, if at all, Nevada's Anti-SLAPP Act should apply to this case should the Court conclude that the law of Nevada, rather than the law of the District of Columbia, applied. On April 23, 2013, Defendants moved in the alternative to dismiss the case under Nevada law, and submitted their motion and brief on Nevada's Anti-SLAPP Act. (Dkt. Nos. 56, 57.) On May 21, 2013, Plaintiff moved for discovery pursuant to Federal Rule of Civil Procedure 56(d) to oppose Defendants' Nevada Anti-SLAPP motion. (Dkt. Nos. 62, 66.) Defendants replied to Plaintiffs opposition and opposed Plaintiffs motion for discovery on June 25, 2013. (Dkt. No. 72.) Plaintiff replied on July 18, 2013. (Dkt. No. 76.)
Defendants have moved to dismiss Adelson's lawsuit pursuant to the District of Columbia Anti-SLAPP Act and District of Columbia defamation law, or, in the alternative, pursuant to the Nevada Anti-SLAPP Act and Nevada defamation law. Thus, at the outset, it is necessary to determine which state's defamation law applies to this action.
Choice of law analysis in defamation cases remains, as it was in Dean Prosser's time, "a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon." William L. Prosser, Interstate Publications, 51 Mich.
This Court sits in New York and therefore applies New York choice of law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In tort actions, New York courts apply the substantive law of the jurisdiction that has the most significant interest in "the specific issue raised in the litigation." Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 196, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985) (quoting Babcock v. Jackson, 12 N.Y.2d 473, 481, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963)). In determining the interests of a jurisdiction in a particular tort, New York courts assess whether the state laws in conflict are primarily "conduct-regulating" or "loss allocating." Padula v. Lilarn Props. Corp., 84 N.Y.2d 519, 522, 620 N.Y.S.2d 310, 644 N.E.2d 1001 (1994). Conduct-regulating rules are those "governing conduct to prevent injuries from occurring," while loss allocating rules "are those which prohibit, assign, or limit liability after the tort occurs...." Id. Compare Cacciola v. Selco Balers, Inc., 127 F.Supp.2d 175, 184 (E.D.N.Y.2001) (causes of action involving the duty and standard of care applicable to manufacturers, are, for choice of law purposes, conduct-regulating), with Armstead v. Nat'l R.R. Passenger Corp., 954 F.Supp. 111, 113 (S.D.N.Y.1997) (determination of whether to apply Virginia's contributory negligence or New York's comparative negligence rule is primarily loss allocating, because both "rules significantly encourage plaintiffs to exercise due care" and "the primary difference is in how loss will be allocated after the tort occurs"). If the laws at issue are primarily conduct-regulating, "the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders." Cooney v. Osgood Mack, 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993). If they are loss allocating, the so-called "Neumeier rules" apply. See Neumeier v. Kuehner, 31 N.Y.2d 121, 129, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972); see also Sheldon v. PHH Corp., 135 F.3d 848, 853 (2d Cir.1998) (applying the Neumeier rules).
The Second Circuit has established that "[discouraging defamation is a conduct regulating rule...." Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir.1999) (citation omitted). Because "the locus of the tort is where the plaintiff suffered injury, often the Court can resolve the choice of law analysis [in a defamation action] simply by observing the state of plaintiffs domicile and presuming that the publication injured him in that state." Condit v. Dunne, 317 F.Supp.2d 344, 353 (S.D.N.Y.2004); see also Lee, 166 F.3d at 545 ("Under New York choice-of-law rules in defamation cases `the state of the plaintiffs domicile will usually have the most significant relationship to the case,' and its law will therefore govern." (quoting Reeves v. Am. Broad. Co., 719 F.2d 602, 605 (2d Cir.1983))). In multistate defamation cases, however, this "locus of the tort factor" arguably "begs, rather than answers, the ultimate choice of law question." Condit,
Nevada's interest in this case is significant and incontrovertible. Adelson is a Nevada citizen, and the Adelson business
According to Defendants, the Court should follow Costa-Gavras and hold that Defendants' domicile, here the District of Columbia, has a "more significant" interest in the case than Plaintiffs domicile, here Nevada. Costa-Gavras, 580 F.Supp. at 1091. In Costa-Gavras, the plaintiffs, all domiciled outside of New York, brought a libel action against, inter alia, a book's author and publishers, which were domiciled in New York.
Id. at 1092. Courts in this district have followed Costa-Gavras in a number of defamation cases, applying New York law where publishing and media defendants were domiciled in New York, even where the plaintiff was domiciled in another state. See, e.g., Weinstein, 1996 WL 137313, at *7, *9 (determining that the law of New York, which was both defendants' domicile and the place the book at issue was written, edited, and published, applied in lawsuit against book author and publishers because "New York has a strong policy in protecting its media defendants"); Grass v. News Grp. Publ'ns, 570 F.Supp. 178, 185-86 (S.D.N.Y.1983) (concluding that New York law applied in a defamation suit brought by former brother-in-law of a New York gubernatorial candidate where plaintiff had a large amount of contacts
Defendants have failed to persuade that the District of Columbia's particular interest in this case is analogous to New York's interest in protecting New York's publishers and media industry. Defendants argue that the District of Columbia has a particular interest here, akin to New York's interest in media and publishing, because the publication related to the presidential campaign and federal regulation of political contributions.
But of course, the race for president of the United States occurs in every state in the Union, not just in the District of Columbia. It is therefore difficult to see why the fact that the comments relate to Adelson's contributions in a presidential race should give the District of Columbia a particular interest in the resolution of this dispute, except to the extent that defamatory comments made in the context of a presidential campaign may tangentially affect who ultimately moves into 1600 Pennsylvania Avenue.
The suggestion that a statement about a presidential contestant particularly affects the District of Columbia is somewhat akin to an argument that a copyright lawsuit about the film Philadelphia should apply Pennsylvania law, even though the screenwriter and filmmakers lived in New York City and Los Angeles. Nor does the fact that federal government regulators of campaign contributions are based in the District of Columbia support a dominant interest on the part of that jurisdiction: the publication at issue here was not about government regulation, but about the propriety of a candidate's acceptance of certain contributions in a national campaign. Because the District of Columbia has no particular interest in this action, Defendants have failed to demonstrate that it would be appropriate to apply District of Columbia law under New York's choice of law rules.
Costa-Gavras and its progeny are distinguishable from this case in other ways as well. First, in those cases, courts opted to apply the law of the defendants' jurisdiction where it coincided with the law of the forum state. See Costa-Gavras, 580 F.Supp. at 1093 (noting that the Court was "particularly" willing to apply the law of the defendants' domicile, "when," as in Costa-Gavras, "it is also the forum state"); see also Hatfill, 401 F.Supp.2d at 325 ("In those cases where defendant's domicile trumped plaintiffs, New York had some other significant connection to the case, making use of its law reasonable."). But see Larry Kramer, Interest Analysis and the Presumption of Forum Law, 56 U. Chi. L.Rev. 1301, 1309 (1989) (criticizing the notion that the law of the forum should
Second, the plaintiffs in Costa-Gavras were "public servants from different jurisdictions," which diluted each plaintiffs interest in applying the law of their respective home states. Id. at 1093; see also Sack, Sack on Defamation, at § 15:3.2, 15-55 (noting that "[t]he result in Costa-Gavras becomes less likely where the plaintiff or plaintiffs have a more clearly defined, single domicile whose interests more clearly predominate").
Third, the circumstances of Costa-Gavras made the application of the law of the plaintiffs domicile particularly problematic. Costa-Gavras concerned the liability of a book publisher and author for the book's subsequent reprinting by another publisher and in a movie, and the Costa-Gavras court was concerned about protecting defendants from being sued under a state law — as it happened, the law of the District of Columbia — to which they had not submitted themselves. See Costa-Gavras, 580 F.Supp. at 1092-93 ("Justice in conflicts rules, as in jurisdiction, requires minimal contacts with another forum before subjecting the nondomiciliary to its laws. There is `a serious question of deprivation of the defendant's due process rights [in] casting him in liability under the law of a state with which he [has] in no way voluntarily associated himself.'" (quoting Harold L. Korn, The Choice-of-Law Revolution: A Critique, 83 Colum. L.Rev. 772, 867, 966-67 (1983))); see also Eugene F. Scoles et al., Conflict of Laws 848 (4th. ed. 2004) (arguing that a foreseeability of the injury in the plaintiffs state can "tip the scales and make[ ] the application of the law of the injury-state an appropriate solution to these otherwise difficult true conflicts"). Here, Defendants had reason to foresee that their actions would affect a Nevada resident. Accord Xcentric Ventures, LLC v. Bird, 683 F.Supp.2d 1068, 1073 (D.Ariz.2010) ("Although communities in the United States with little or no internet usage still exist, in general, it is quite foreseeable that the brunt of the reputational harm that results
In sum, Costa-Gavras and its progeny are distinguishable from this case, and Defendants have failed to rebut the presumption that Nevada has the most significant interest in this litigation. It is therefore Nevada's defamation law that will be applied in this action.
Defendants have moved to dismiss the Complaint pursuant to Rule 12(b)(6) and pursuant to Nevada's Anti-SLAPP statute.
To survive a motion to dismiss pursuant to Federal Rule 12(b)(6), a plaintiff must plead sufficient factual allegations "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court must accept as true all well-pleaded factual allegations in the complaint, and "draw[ ] all inferences in the plaintiffs favor." Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir.2006) (internal quotations omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; see also Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (noting that a court is "not bound to accept as true a legal conclusion couched as a factual allegation" (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986))).
Because a defamation suit "may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself," courts should, where possible, resolve defamation actions at the pleading stage. Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C.Cir.1966); see also Biro v. Conde Nast, 883 F.Supp.2d 441, 457 (S.D.N.Y.2012) (noting that there "is `particular value' in resolving defamation claims at the pleading stage" (citation omitted)).
"Defamation is a publication of a false statement of fact." Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 57 P.3d 82, 87 (2002); see also Idema v. Wager, 120 F.Supp.2d 361, 365 (S.D.N.Y.2000) ("Defamation is the injury to one's reputation either by written expression, which is libel, or by oral expression, which is slander.") (citation omitted). "To establish a prima facie case of defamation, a plaintiff must prove: (1) a false and defamatory statement by defendant concerning the plaintiff; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed
Whether a statement is capable of a defamatory construction is a question of law for the court to decide. Branda v. Sanford, 97 Nev. 643, 637 P.2d 1223, 1225 (1981). "A statement is defamatory when, `[u]nder any reasonable definition[,] such charges would tend to lower the subject in the estimation of the community and to excite derogatory opinions against him and to hold him up to contempt.'" Posadas v. City of Reno, 109 Nev. 448, 851 P.2d 438, 442 (1993) (citation omitted).
Defendants argue that the Petition's statements that "reports [had] surfaced" that Adelson "`personally approved' of prostitution in his Macau casinos" and "reportedly approved of prostitution" constitute privileged reports of a judicial proceeding.
Nevada "has long recognized a special privilege of absolute immunity from defamation given to the news media and the general public to report newsworthy events in judicial proceedings." Sahara Gaming Corp. v. Culinary Workers Union Local 226, 115 Nev. 212, 984 P.2d 164, 166 (1999); see also Circus Circus Hotels v. Witherspoon, 99 Nev. 56, 657 P.2d 101, 104 (1983) ("[There] is [a] long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of controversy." (citation omitted)). Indeed, the fair report privilege is grounded not just in common law, but also in constitutional principles. See Restatement (Second) of Torts § 611, cmt. b ("If the report of a public official proceeding is accurate or a fair abridgement, an action cannot constitutionally be maintained, either for defamation or for invasion of the right of privacy.").
Although the fair report privilege is most commonly asserted by media defendants, it "extends to any person who makes a republication of a judicial proceeding from material that is available to the general public." Sahara Gaming Corp., 984 P.2d at 166 (citing Restatement (Second) of Torts § 611 cmt. c). In Nevada, if the privilege applies, it is "absolute," meaning it "precludes liability even where the defamatory statements are published with knowledge of their falsity and personal ill will toward the plaintiff." Circus Circus Hotels, 657 P.2d at 104; see also Sahara Gaming Corp., 984 P.2d at 165. In order to receive the benefit of the fair report privilege, (1) it must be "apparent either from specific attribution or from the overall context that the article is quoting, paraphrasing, or otherwise drawing upon official documents and proceedings;" and (2) the statement must constitute a "fair and accurate" description of the underlying proceeding. Dameron v. Washington Magazine, Inc., 779 F.2d 736, 739 (D.C.Cir.1985).
"As a general matter, in order to enjoy the protection of the privilege, the publication in issue must clearly attribute the statement in question to the official proceeding or document on which it is reporting or from which it is quoting." Sack, Sack on Defamation, at
In determining whether the attribution requirement has been met, the relevant question is whether "the average reader would be [ ]likely to understand the article (or the pertinent section thereof) to be a report on or summary of an official document or proceeding. It must be apparent either from specific attribution or from the overall context that the article is quoting, paraphrasing, or otherwise drawing upon official documents or proceedings." Dameron, 779 F.2d at 739; see also id. at 740 (holding that an article's reliance of a report did not qualify for the privilege because "[t]he challenged assertion is simply offered as historical fact without any indication of its source").
In the instant action, the Petition quotes from, and hyperlinks to, a news report that accurately describes and quotes from the Jacobs Declaration. (See Petition (
Not so long ago, the Second Circuit could not discuss the hyperlink without defining the innovation for its readers. See Bensusan Restaurant Corp. v. King, 126 F.3d 25, 27 n. 1 (2d Cir.1997) (explaining that "[a] hyperlink is `highlighted text or images that, when selected by the user, permit him to view another, related Web document'" (citation omitted)). Nearly two decades later, it is simply assumed that persons navigating the Internet understand hyperlinks as means of connecting one webpage to another. Thus, in Fteja v. Facebook, 841 F.Supp.2d 829, 839 (S.D.N.Y.2012), Judge Holwell rejected the plaintiffs argument that the Terms of Use were rendered void because they were available only by hyperlink:
Cf. SEC Release No. 33-7233 (SEC opining that providing hyperlinks on an online offering is akin to including the contents of the second site in the same delivery envelope as the prospectus).
The hyperlink is not only the "twenty-first century equivalent of turning over the cruise ticket" for purposes of consumer contracts. The hyperlink is the twenty-first century equivalent of the footnote for purposes of attribution in defamation law, because it has become a well-recognized means for an author or the Internet to attribute a source. See Lokman Tsui, The Hyperlink in Newspapers and Blogs, in The Hyperlinked Society: Questioning Connections in the Digital Age 70, 73 (Joseph Turow and Lokman Tsui, Eds. 2008) ("Perhaps the most classic function of the hyperlink is to use it for citation."). Indeed, as a form of attribution, a hyperlink provides benefits that a footnote does not. Unlike a footnote on a piece of paper — which merely provides one with directions to the source — the hyperlink instantaneously permits the reader to verify an electronic article's claims. See id. at 70 ("[L]inks can be very useful in their ability to directly link to source material, such as public reports or official transcripts, in providing support for a news article. Considering that trust in what the people hear, see, and read has been steadily declining since the 1980s, the ability of the hyperlink to link a claim to its source can increase transparency of the news and subsequently restore some of the credibility of the mass media.... The hyperlink [ ] is able to support the facticity of news...."); see also Anjali Dalai, Protecting Hyperlinks and Preserving First Amendment Value on the Internet, 13 U. Pa. J. Const. L. 1017, 1019 (2011) ("Hyperlinks have long been understood to be critical to communication because they facilitate access to information. They provide visitors on one website a way to navigate to internally referenced words, phrases, arguments, and ideas.").
Defendants argue that a footnote constitutes sufficient attribution but a hyperlink does not, because the former "is actually part of the four corners of a publication, and does not require external navigation." (Def.'s Opp'n. at 23.) But this contention is premised on a type of formalism that is misplaced in Internet defamation law. While it is true that one can verify a hyperlinked source's content only through "external navigation," it takes just as much "external navigation" to verify the content of a footnote or endnote. As compared to a footnote, which can often be verified only via a sojourn to the library, the verification of a hyperlink is far from onerous. Cf. Jankovic v. Inter'l Crisis Grp., 429 F.Supp.2d 165, 177 n. 8 (D.D.C.2006) (noting that, even if the meaning of the allegedly defamatory statement was unclear, it was clarified by the "two internet links" at the end of the sentence: "What little confusion the sentence could possibly cause is easily dispelled by any reader willing to perform minimal research."). Nor is there any reason to believe that a footnote is read more frequently than a hyperlink is clicked on.
In Nicosia v. De Rooy, 72 F.Supp.2d 1093 (N.D.Cal.1999), Judge Chesney considered the effect of hyperlinks in defamation actions. While Nicosia considered the ability of hyperlinks to transform a statement into constitutionally protected opinion, it is nonetheless instructive here. In Nicosia, the defendant argued that his posting accusing the plaintiff of committing embezzlement constituted non-defamatory opinion based upon undisclosed facts, where the facts upon which the post relied were in articles to which the posting hyperlinked. The plaintiff, by contrast, argued that "the embezzlement accusation must be read in isolation from [the defendant's] other articles because the ... posting which contained the allegation did not include any underlying facts." Id. at 1103. Judge Chesney rejected the plaintiffs contention that a posting "direct[ing] readers to specific articles ... and providing] a hyperlink for immediate access to such articles" is based upon undisclosed facts: "These articles were at least as connected to the news group posting as the back page of a newspaper is connected to the front. Thus, the Court considers the articles part of the context of the embezzlement accusation." Id.; see also Franklin v. Dynamic Details, Inc., 116 Cal.App.4th 375, 379, 10 Cal.Rptr.3d 429 (2004) ("The e-mails disclosed the facts upon which the opinions were based by directing the reader to the FCC Web site and (via a Web link on the FCC Web site) to another company's Web site..... A reader of the e-mails could view those Web sites and was free to accept or reject Axton's opinions based on his or her own independent evaluation."); Agora, Inc. v. Axxess, Inc., 90 F.Supp.2d 697, 704-05 (D.Md.2000) (dismissing defamation claim based in part on facts disclosed in hyperlinked documents).
In short, by hyperlinking to the AP Article — which quotes from the Jacobs Declaration — and by using the words "reportedly" and "reports" to signal to the reader that the hyperlink connects one to the source of the Petition's claims, Defendants adequately "fulfill[ed] the function of
In order for the fair report privilege to apply, "[i]t is not necessary that [a report] be exact in every immaterial detail or that it conform to that precision demanded in technical or scientific reporting. It is enough that it conveys to the persons who read it a substantially correct account of the proceedings." Restatement (Second) of Torts § 611 cmt. f. Nonetheless, where a report of a judicial proceeding goes "beyond fair, accurate, and impartial reporting ... by presenting a one-sided view of the action," the fair and true report privilege will not save a defendant. Lubin v. Kunin, 117 Nev. 107, 17 P.3d 422, 427 (2001); see also id. at 427-28 ("While Sahara Gaming allows a party to report preliminary judicial proceedings from a fair and neutral stance, a party may not don itself with the judge's mantle, crack the gavel, and publish a verdict through its `fair report.'").
The statements at issue here are the Petition's claims that "reports surfaced that ... Adelson `personally approved `of prostitution in his Macau casinos" and that Adelson "reportedly approved of prostitution." As explained above, the Petition accurately quotes the AP Article, which in turn accurately quotes the Jacobs Declaration. Moreover, at the time the Petition was posted, the defendants in the Jacobs action had not yet filed their response to the Jacobs Declaration, so it cannot be seriously maintained that the Petition unfairly presented a one-sided view of the action. (See Strom Decl., Ex. 111 Tabs A-C.)
Accordingly, the Court concludes that the Petition contains a fair and accurate report of the Jacobs Declaration.
That leaves the comments in the Petition about Adelson's "dirty" and "tainted" money. As explained below, the Court determines that these comments are constitutionally protected statements, as they are incapable of bring proven true or false.
The determination of whether a statement constitutes constitutionally protected opinion or unprotected fact is an issue that must be decided by the Court. Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 178 (2d Cir.2000); see also Potomac Valve & Fitting, Inc. v. Crawford Fitting, 829 F.2d 1280, 1285 n. 12 (1987). Given the importance of the First Amendment principles at stake, "[w]here the question of truth or falsity is a close one, a court should err on the side of non-actionability." Celle, 209 F.3d at 188 (quoting Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292 (D.C.Cir. 1988)).
While there is no "separate constitutional privilege for `opinion' ...," Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); see also Flamm v. Am. Assoc. of Univ. Women, 201 F.3d 144, 147 (2d Cir.2000), a statement "will receive full constitutional protection" if it "does not contain a provably false factual connotation." Milkovich, 497 U.S. at 20, 110 S.Ct. 2695; see also ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490, 496 (2d Cir.2013) ("Generally, statements of pure opinion — that is, statements incapable of being proven false — are protected under the First Amendment.").
In the wake of Milkovich, some courts have continued to use multifactor balancing tests to determine whether a statement is a constitutionally protected. See Phantom Touring, Inc. v. Affiliated Publ'ns, 953 F.2d 724, 727 (1st Cir.1992) ("[W]hile eschewing the fact/opinion terminology, Milkovich did not depart from the multi-factored analysis that had been employed for some time by lower courts seeking to distinguish between actionable fact and non-actionable opinion.") The Ninth Circuit's test, while not binding on this court, is instructive:
Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir.1995) (citing cases). Employing that test here, the Court concludes that the Petition's statements that Adelson's money is "dirty" or "tainted" constitute constitutionally protected opinion.
In assessing whether a statement constitutes opinion or fact, "courts look to ... the broader social context of the statement, and evaluate the impact that the statements would have on a reasonable reader." Levin v. McPhee, 119 F.3d 189, 197 (2d Cir.1997) (citations omitted). Compare Letter Carriers v. Austin, 418 U.S. 264, 284-87, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (use of the word "traitor" in a newsletter was constitutionally protected hyperbole, as no reasonable reader could believe the word was used literally in the context of a labor dispute), with Flamm, 201 F.3d at 152 ("Exaggerated rhetoric may be commonplace in labor disputes, but a reasonable reader would not expect similar hyperbole in a straightforward directory of attorneys and other professionals. Indeed, the opposite is true.").
While "often decr[ied]" by the media and others, "[t]he `low level' of campaign tactics or rhetoric" in this nation's national campaigns is, now more than ever, a generally accepted fact of American life. Secrist v. Harkin, 874 F.2d 1244, 1249 (8th Cir.1989) (citation omitted); see also id. ("There may be no public context more contentious than a political campaign.") Thus, courts "shelter strong, even outrageous political speech," on the ground that "the ordinary reader or listener will, in the context of political debate, assume that vituperation is some form of political opinion neither demonstrably true nor demonstrably false." Sack, Sack on Defamation, at § 4:3:1[B], 4-43; see also id., at § 4:3:1[A], 4-31 ("Potentially defamatory statements in the guise of statements of fact uttered during a bitter political debate are particularly likely to be understood as rhetorical opinion."); Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal, of Life Activists, 244 F.3d 1007, 1019 (9th Cir.2001) (acknowledging the "well-recognized principle that political statements are inherently prone to exaggeration and hyperbole." (citing Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969))); Lynch v. New Jersey Educ. Ass'n, 161 N.J. 152, 735 A.2d 1129, 1136 (1999) ("Readers know that statements by one side in a political contest are often exaggerated, emotional, and even misleading."); Koch v. Goldway, 817 F.2d 507, 509 (9th Cir.1987) (noting that where the "circumstances of a statement are those of a heated political debate, [ ] certain remarks are necessarily understood as ridicule or vituperation, or both, but not as descriptive of factual matters"); accord Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir.1999) ("In the final analysis, [City Council member's reference to a union leader as a "Jimmy Hoffa"] was the type of rhetorical hyperbole or caustic attack that a reasonable person would expect to hear in a rancorous public debate involving money, unions, and politics. Therefore, the statement could not give rise to a cognizable claim of defamation."); Welch v. Am. Publ'g Co., 3 S.W.3d 724, 730 (Ky.1999) (dismissing defamation suit based on accusation that a mayor "squandered" money, as "generalized rhetoric bandied about in a political
Here, the speech at issue was patently partisan and political. Indeed, the Petition was published by a self-proclaimed "Democratic" organization, targeting Democratic-leaning voters, with the express purpose of eroding Governor Romney's campaign coffers. (See Petition (bemoaning that Adelson is donating large amounts to "Mitt Romney — with no plans to stop.") Stated differently, the Petition was plainly the product of a "statement[ ] by one side in a political contest," unsurprisingly filled with "exaggerated" and "emotional" rhetoric. Lynch, 735 A.2d at 1136.
In determining whether a statement constitutes constitutionally protected opinion, courts also look to the specific context of the statement. When looking at a statement's specific context, "[o]f particular importance is the princip[le] that `when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.'" Nicosia, 72 F.Supp.2d at 1102 (quoting Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir.1995)); see also Moldea v. New York Times Co., 22 F.3d 310, 317 (D.C.Cir. 1994). In other words, "[a] simple expression of opinion based on disclosed ... nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is." Restatement (Second) of Torts § 566, cmt. c. "The rationale behind this rule is straightforward: When the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author's interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed facts." Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1439 (9th Cir.1995) (citation omitted).
The Petition stated that "Romney and the rest of the Republican Party must cease accepting Adelson's tainted money immediately" and urged readers to "enlist [their] family and friends in an effort to stop the influence of Adelson's tainted money...." Reading the Petition in its entirety, it is apparent that Defendants' contention that Adelson's money is "tainted" and "dirty" is based upon fully disclosed facts.
Thus, no reader of the Petition could reasonably believe that its assertions that Adelson's money is "tainted" or "dirty" are based upon anything other than the fully disclosed facts. Because the general and specific contexts in which the statement was made negate any suggestion that the Petition's use of the words "tainted" and "dirty" was itself meant to imply an expression of fact, the use of those terms is constitutionally protected.
Finally, the Court looks to the statements themselves to determine whether, irrespective of the context in which they were made, the statements at issue are capable of being proven true or false. They are not. Accord Partington, 56 F.3d at 1157 (holding that where the context in which the statement at issue was made is sufficient to demonstrate that the statement is constitutionally protected, the fact that the statement itself cannot be proven true or false is an additional basis for dismissing the defamation action).
While most money in circulation is literally quite dirty,
Money might also be called "dirty" or "tainted," however, simply to signify that it has been obtained by immoral means. See, e.g., Jennifer E. Stellar & Robb Wilier, The Corruption of Value: Negative Moral Associations Diminish the Value of Money, Soc. Psychol. & Personality Sci. 1 (Apr. 2013) (explaining their findings that "morally tainted money will generally be perceived by others as less desirable"); see also id. at 5 ("Commonly heard metaphors such as dirty money ... suggest that individuals view ethical concerns as relevant to the value and desirability of money." (emphasis in original)); Derek Bok, Beyond the Ivory Tower: Social Responsibility of the Modern University 270 (1982) ("Difficult issues arise when gifts arrive from donors who have allegedly earned their money by immoral means or acted in ways that conflict with strongly held values in the community. Many critics would urge the rejection of these `tainted' funds."); accord McCabe, 814 F.2d at 842 (holding that the word "scam" has no precise meaning because "[w]hile some connotations of the word may encompass criminal behavior, others do not"). Unlike an accusation that one committed criminal conduct, which can be proven true of false, an accusation that one has acted immorally is generally a matter of opinion. See Wait v. Beck's N. Am., Inc., 241 F.Supp.2d 172, 183 (N.D.N.Y.2003) ("[A s]tatement[] that someone has acted ... unethically generally [is] constitutionally protected statements of opinion."); Biro, 883 F.Supp.2d at 463 ("[T]he use of the terms `shyster,' `con man,' and finding an `easy mark' is the type of `rhetorical hyperbole' and `imaginative expression' that is typically understood as a statement of opinion." (quoting Milkovich, 497 U.S. at 20, 110 S.Ct. 2695)).
Additionally, money is also at times referred to as "dirty" or "tainted" not because of its method of acquisition, but because of its use. Indeed, during the campaign at issue in this case, MSNBC's daily news show Hardball had a recurring segment entitled "Dirty, Angry Money," which Hardball's host, Chris Matthews, described as follows:
4/30/12 MSNBC News, 2012 WLNR 9098461; see also 8/23/12 MSNBC News, 2012 WLNR 18013378 (wherein Matthews notes that his assessment of what money is "dirty ... might be subjective...."). Notably, in his "Dirty, Angry Money" segment, Matthews repeatedly took aim at Adelson's contributions to Republican candidates. See, e.g., 6/17/12 MSNBC News, 2012 WLNR 11965366 ("Sheldon Adelson, the casino magnate, Diane Hendricks, another wealthy donor, each more than half a million, just regular people trying to do their bit, right? Regular people who hate the president and can't wait for any chance to throw some money behind any attack ad they find. Well, thanks to the right-leaning Supreme Court and its Citizen United ruling, they can spend all they want. And now they know they can get results. This election in Wisconsin, this week, whatever you think, could have a huge impact in November. It's going to teach all that dirty, angry money, all those people who love influencing America and American politics, all the while keeping themselves
In short, "dirty money" and "tainted money" are "concepts whose content is so debatable, loose and varying, that they are insusceptible to proof of truth or falsity." Buckley, 539 F.2d at 894. Thus, an assertion that money is "dirty" and "tainted" may not be susceptible of being proven true or false, and that is the case here.
Considering the broad and specific contexts of the challenged statements, and the language of the statements themselves, the Petition's assertions that Adelson's money was "tainted" and "dirty" are constitutionally protected expressions of opinion.
The Complaint alleges that the Press Release constituted a republication of the Petition. (See Compl. at ¶¶ 46-52) However, "a mere reference to another writing that contains defamatory matter does not constitute an actionable repetition or republication." Goforth v. Avemco Life Ins. Co., 368 F.2d 25, 28 n. 7 (4th Cir. 1966). Moreover, even if the Press Release constituted a republication, this would render it defamatory only to the extent that the Petition itself was defamatory. (See Compl. at ¶ 46 ("The gist of the [Press Release] is false and defamatory because the accusations contained in the [Petition] are false and defamatory.").) Thus, for the reasons explained supra, the Press Release is not defamatory as a matter of law.
Defendants have also moved to dismiss pursuant to Nevada's Anti-SLAPP statute. Although the Court has determined that this action must be dismissed under Rule 12(b)(6), that determination does not necessarily render moot Defendants' motion under the Anti-SLAPP statute, because that statute provides for certain relief in the event of dismissal, including the recovery of attorney's fees.
"Nevada's anti-SLAPP statute was enacted in 1993, shortly after California adopted its statute, and both statutes are similar in purpose and language." John v. Douglas Cnty. Sch. Dist., 125 Nev. 746, 219 P.3d 1276, 1281 (2009). The statute was designed to thwart Strategic Lawsuits Against Public Participation, or "SLAPP lawsuits," which "abuse the judicial process by chilling, intimidating, and punishing individuals for their involvement in public affairs." Id. (citing 1997 Nev. Stat., ch. 387, preamble, at 1364). To achieve this end, it provides immunity for "any good faith communication" made "in furtherance of the right to petition." N.R.S. § 41.650. In applicable cases, defendants may file a "special motion to dismiss," which must be "[t]reat[ed] ... as a motion for summary judgment." N.R.S. § 41.660(l)(a), (3)(a). The statute also provides that the court shall stay discovery pending a ruling on the special motion to dismiss and the disposition of any appeal from such a ruling. N.R.S. § 41.660(3)(b). Any dismissal pursuant to such motion "operates as an adjudication on the merits." N.R.S. § 41.660(4).
The Nevada Anti-SLAPP statute provides that "[a] special motion to dismiss must be filed within 60 days after service of the complaint, which period may be extended by the court for good cause shown." N.R.S. § 41.660. As a federal court applying Nevada law, this Court is obliged to apply the Nevada Anti-SLAPP statute's filing deadline as it would be applied in the Nevada state courts. See, e.g., Balestra-Leigh v. Balestra, 2010 WL 4280424, at *3 (D.Nev. Oct. 19, 2010) (assessing whether Nevada Anti-SLAPP claim brought in federal court was timely); cf. Sherrod v. Breitbart, 720 F.3d 932, 937-38 (D.C.Cir.2013) (motion under the D.C. Anti-SLAPP statute not filed within 45-day time period was untimely, as time limits provided for by state Anti-SLAPP
Here, the Complaint was served on Defendants on August 8 and 9, 2012, giving Defendants until October 8, 2012 to file their motion in a timely manner. (Dkt. Nos. 9 & 10). On September 21, 2012, Defendants concurrently moved to dismiss pursuant to the D.C. Anti-SLAPP statute and Rule 12(b)(6), but chose not to move under the Nevada statute until April 23, 2013, after the Court informed the parties that it was inclined to apply Nevada, rather than District of Columbia, law. (Dkt. Nos. 16 & 17).
Defendants argue that they nevertheless invoked the Nevada statute's protection in a timely manner through the inclusion of the following footnote in their Memorandum of Law in Support of their Motion to Dismiss under the D.C. Anti-SLAPP statute:
(Defs.' Mem. at 2 n. 2.) However, the inclusion of a footnote in a brief informing the court that one might file a motion at a later date is not tantamount to actually filing the motion, nor could Defendants "reserve the right" to file a motion after the filing deadline.
Notwithstanding Defendants' failure to file their motion within the statutorily prescribed time frame, the Court finds good cause to extend the deadline nunc pro tunc. While Defendants' footnote did not constitute the filing of a motion, it still served a purpose of the Anti-SLAPP statute's filing deadline by notifying the Court and Plaintiff of Defendants' intent to rely upon the Nevada Anti-SLAPP statute in the event that the Court concluded that Nevada law would apply.
Moreover, this case presented a difficult choice-of-law question, where the Court could conceivably have concluded that District of Columbia, Nevada, New York, or Texas law applied. Defendants made a good-faith — though ultimately unpersuasive — argument that D.C. law ought to apply, and simultaneously informed the Court and Plaintiff that they would seek the protections of whichever state's anti-SLAPP statute applied. Perhaps, in an abundance of caution, Defendants could have filed motions and supporting memoranda of law under each state's statute. (Plaintiff, in turn, would have submitted opposing memoranda for each motion, and Defendants presumably would have submitted reply memoranda). But this would hardly have served the Nevada Anti-SLAPP statute's purposes of preventing the imposition of burdensome litigation expenses and promptly resolving Anti-SLAPP motions. See, e.g., Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 802 (9th Cir.2012) (noting that the Nevada Anti-SLAPP statute "allows a citizen to obtain a prompt review of potential SLAPP lawsuits and have them dismissed before she is forced to endure the burdens and expense of the normal litigation process"). Nor would it have been a reasonable allocation of this Court's limited resources.
The Nevada Anti-SLAPP statute protects "good faith communication in furtherance of the right to petition," which it defines as "any:
which is truthful or is made without knowledge of its falsehood." N.R.S. § 41.637. Defendants contend that the Petition and Press Release fall within the first and third prongs of the statute, and were either truthful or made without knowledge of their falsehood.
Under the plain language of the first prong, the Petition and Press Release are protected as "[c]ommunication[s] ... aimed at procuring an[] ... electoral action, result or outcome." "Electoral" simply means "pertaining to electors or elections." Black's Law Dictionary 520 (6th ed. 1990); see also Merriam-Webster Dictionary ((1) "of or relating to an elector;" (2) "of or relating to an election"); Oxford English Dictionary ("of or relating to elections or electors"). As noted supra, the Petition and Press Release were patently partisan statements made by a Democratic organization to Democratic-leaning voters in an effort to undermine Republican candidates' financial support. It strains credulity to argue that such communications are not aimed at procuring an action, result, or outcome relating to an election. Cf. Smith v. United States, 508 U.S. 223, 237, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) ("The phrase `in relation to' is expansive.").
Plaintiff nevertheless argues, citing Merriam-Webster's second definition, that the statute protects only communications aimed at procuring an action, result, or outcome related to a vote in an election. Plaintiff provides no justification, however, for making the jump from the broader "of or relating to an election" to the much narrower "of or relating to a vote in an election." It is therefore of no consequence
Plaintiff also argues that the phrase "right to petition" is a legal term of art denoting "[t]he constitutional right — guaranteed by the First Amendment — of the people to make formal requests to the government, as by lobbying or writing letters to public officials." Black's Law Dictionary (9th ed. 2009) (emphasis added). Plaintiff therefore reads "good faith communication in furtherance of the right to petition" to restrict the scope of the statute to communications made to a government agency. The first problem with this argument is that it is undermined by the express language of the statute: the phrase is a defined term in the statute; it does not invoke a general legal term of art. See N.R.S. § 41.637 ("Good faith communication in furtherance of the right to petition means ....") (emphasis added). However, even if "right to petition" is understood as a term of art, the statute protects "communications made in furtherance of the right to petition," itself a statutory term of art defined in the three prongs. Plaintiff would have the Court ignore the provision's definitional structure, as well as the broad language in the first prong.
Plaintiffs interpretation would also render "electoral action" mere surplusage, as making a formal request to the government to take any action would necessarily require the government to take "governmental" action. Cf. Sutherland Statutes and Statutory Construction § 47:37 (2012) (stating the requirement for courts "to accord meaning, if possible, to every word in a statute"). Put another way, it is difficult to imagine what the Nevada legislature could have meant by "communication[s]... aimed at procuring any ... electoral action, result or outcome" other than communications to the electorate and regarding elections — communications that by their nature are not made to government agencies.
Plaintiff's final, and most persuasive, argument is that application of Nevada's Anti-SLAPP statute in this case is foreclosed by the Nevada Supreme Court's decision in John. John was an employment discrimination action by a former school security officer against the school district and several district employees based upon statements made by the employees to the district during the course of an official investigation into the plaintiffs workplace conduct. John, 219 P.3d at 1279-80. The defendants sought to dismiss the action under the Nevada Anti-SLAPP statute on the ground that the statements were protected under the second prong as communications to the school district regarding a matter of reasonable concern — an employee's misconduct. Id. The Nevada Supreme Court agreed and dismissed the action. Id. at 1286-87.
Plaintiff points to several statements in the court's opinion that could be read to restrict the scope of the statute to communications
As an initial matter, the factual context of the case casts doubt upon the notion that the court was interpreting all three prongs of the Anti-SLAPP statute. Rather, because only the second prong was at issue, and because the second prong expressly references communications to a government entity, the more natural reading of the case is that the court was simply expounding upon the second prong, and was unconcerned with the first and third prongs. See John, 125 Nev. at 760-62, 219 P.3d at 1285-87.
The specific context of the court's statement also undermines Plaintiffs interpretation. In the paragraph preceding the quoted language, the court compared the Nevada Anti-SLAPP statute's purpose to that of the federal Noerr-Pennington doctrine:
John, 219 P.3d at 1281 (emphasis in original) (citations omitted). The court's emphasis on "good-faith communications to a government agency" admits of two possible readings: (1) the anti-SLAPP statute, like Noerr-Pennington, protects only good-faith communications; or (2) the anti-SLAPP statute, like Noerr-Pennington, protects only good-faith communications to a government agency. The first is more plausible, for two reasons.
First, it is the more natural reading when the second paragraph is read in light of the first. Both paragraphs contain language regarding the good faith requirement: in the first paragraph's last sentence — where the court speaks of "sham" cases — and in the second paragraph's last two sentences — where the court speaks of "good-faith communications" and the inapplicability of the statute to "citizens who do not petition the government in good faith." In contrast, while the second paragraph's
Second, there is good reason to assume that the Nevada Supreme Court was not saying that Noerr-Pennington requires communication to a government agency: it does not. As the Ninth Circuit recognized in Sosa v. DIRECTV, Inc.:
437 F.3d 923, 934 (9th Cir.2006); see also id. at 935 ("Accordingly ... communications between private parties are sufficiently within the protection of the Petition Clause to trigger the Noerr-Pennington doctrine, so long as they are sufficiently related to petitioning activity"); Murguia v. Palmer, 2013 WL 1250449, *2-3, 2013 U.S. Dist. LEXIS 43369, at *6-7 (D.Nev. Mar. 27, 2013) (noting that "encouraging the public to vote in a particular way" is protected under Noerr-Pennington) (citing Affordable Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1189-90 (9th Cir. 2006)). The Court is reluctant to adopt Plaintiffs interpretation, which would ascribe to the Nevada Supreme Court an untenable interpretation of federal law where another reasonable interpretation is available.
John's ambiguity is reflected in the divergent interpretations it has spawned in the lower courts. While Plaintiff cites two federal district court cases in support of his interpretation, see Collins v. Laborers Int'l Union ofN. Am. Local No. 872, 2011 U.S. Dist. LEXIS 79853, at *3 (D.Nev. July 21, 2011) (finding no protection under third prong for communications made between plaintiffs, defendants, union employers, and union clients, because they were not made to a government agency, citing John); Buckwalter v. Wey, 2010 WL 2609100, at *3 (D.Nev. June 24, 2010) (concluding that comments in newspaper related to legal proceedings were not protected under the third prong because they were not made to a government agency, citing John),
In light of John's ambiguity, it is appropriate to extend the analysis to the statute's legislative history. See, e.g., Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013) ("If ... the terms are ambiguous or unclear, we may consider legislative history and other tools of statutory interpretation.") (citations omitted).
Prior to 1997, the Nevada Anti-SLAPP statute protected just one class of communications, providing:
Archey, 2010 WL 3711513, at *3 (quoting S.B. 405, section 3). This language closely mirrors the language of the second prong in the current version. In 1997, the Nevada legislature amended and expanded the scope of the statute to add the first and third prong. In amending the statute, the legislature explained that "implementation of an anti-SLAPP statute was essential to protect citizens' constitutional rights." John, 219 P.3d at 1281 (citing 1997 Nev. Stat., ch. 387, preamble, at 1364). Although the 1997 statute retained the original version's "right to petition" language, the two new prongs omitted the restrictive language — found in the second prong — referencing communications to a government agency.
To explain the purpose of the amendment, the bill's sponsor placed in the legislative record newspaper reports indicating the types of SLAPP suits it was designed to prevent. (See Dkt. No. 74 ("Sproul Deck"), Ex. 156 ("History of AB485"), at 12-29.) These articles described, inter alia, lawsuits brought by the Church of
This legislative history strongly suggests an intent on the part of the Nevada legislature to expand the Anti-SLAPP statute to reach beyond communications made to a government agency. Accordingly, the Court concludes, in light of the statute's text, structure, legislative history, and a reasonable construction of John, that the Petition and Press Release in this case are protected under the Nevada Anti-SLAPP statute's first prong.
In contrast, the Petition and Press Release are not protected under the third prong as "[w]ritten ... statements] made in direct connection with an issue under consideration by a ... judicial body." Jacobs was an action for breach of contract, and the Jacobs Declaration was related to the issue of personal jurisdiction. The source of Adelson's fortune was not at issue in the case. Any connection between the Petition and Press Release and the issues in Jacobs is tenuous at best. Cf. Gilman v. Spitzer, No. 11 Civ. 5843(JPO), 902 F.Supp.2d 389, 398-99 (S.D.N.Y.2012) (finding any connection between Spitzer's commentary and Gilman's application for an insurance license to be too tenuous for New York's Anti-SLAPP statute to apply), aff'd, 538 Fed.Appx. 45, 2013 WL 5226275 (2d Cir. Sept. 18, 2013).
Defendants alternatively argue that the statements were made in direct connection with legal restrictions on campaign contributions, at issue in Citizens United. That case, however, was decided two years prior to the publication of the Petition, and therefore no longer constituted a "judicial proceeding." Defendants also cite McCutcheon v. Fed. Elections Comm'n, 893 F.Supp.2d 133 (D.D.C.2012). While McCutcheon was at least under consideration when Defendants' published their statement, it addressed aggregate limitations on campaign contributions by individual donors. As Plaintiff observes, the Petition and Press Release — which are addressed to the issue of whether Adelson's money was "dirty" or "tainted" — are insufficiently related to (and certainly not "in direct connection with") the issues in McCutcheon. Finally, Defendants claim that their communications were directly connected to ongoing investigations by the Department of Justice and the Securities Exchange Commission. However, the Petition's statement regarding allegedly corrupt business practices is ancillary to the primary statements at issue — whether Adelson approved of prostitution — and in any event, the Court finds the Petition and Press Release too tenuously connected to the investigations to be protected under this prong.
Having determined that Defendants' communications are protected under the first prong of Nevada's Anti-SLAPP statute, the Court now turns to whether the communications were made in good faith — i.e., whether they were (i) truthful, or (ii) made without knowledge of their falsehood. N.R.S. § 41.637. The Court concludes as a matter of law that Defendants' communications were made without knowledge
Even under the more lenient reckless disregard standard, reliance upon a report disseminated by a reputable news organization and a sworn declaration would be insufficient to establish liability as a matter of law. See, e.g., Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1297 (D.C.Cir.1988) ("good faith reliance on previously published news reports in reputable" publications "precludes a finding of actual malice as a matter of law"); Ryan v. Brooks, 634 F.2d 726, 729, 732-34 (4th Cir.1980) (no actual malice as a matter of law where defendant merely summarized two prior news accounts); World Boxing Council v. Cosell, 715 F.Supp. 1259, 1265 (S.D.N.Y.1989) (no actual malice where author relied upon published articles that "appeared in respected publications, and were authored by reputable journalists, whose allegations were not so improbable that a prudent author would have questioned their accuracy"); see generally Sack, Sack on Defamation, at § 5:5.2[C], 5-106 ("There is no obligation to verify the accuracy of a wire service story before publishing it, at least absent actual knowledge of its falsity or such facial improbability as to alert the publisher of its falsity. Such reliance cannot constitute negligent behavior, let alone actual malice.").
In a case bearing facts similar to this one, the First Circuit affirmed a motion to dismiss where the plaintiff failed to allege facts sufficient to plausibly suggest actual malice. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 57-58 (1st Cir.2012) (finding no actual malice as a matter of law in action based on statements in campaign advertisement by Republican State Leadership Committee expressly sourced to underlying news reports, because the advertisement "synced up with or at least was not out of line with what the stories said" in the underlying reports, and none of plaintiff's suggestions plausibly suggested that defendant acted with actual malice); see also Mayfield v. NASCAR, Inc., 674 F.3d 369, 378 (4th Cir.2012) (dismissing defamation action based on the pleadings). This conclusion is buttressed where, as here, the allegedly defamatory statements clearly acknowledge that they are based
Here, Plaintiff has not even alleged knowledge of falsity, much less facts to support such a conclusion.
Finally, Plaintiff has moved to strike portions of (1) Defendants' Combined Memorandum of Law in Support of Defendants' Special Motion to Dismiss Pursuant
For the foregoing reasons, it is hereby ordered that:
Defendants' motion to dismiss pursuant to Federal Rule 12(b)(6) is GRANTED;
Defendants' special motion to dismiss pursuant to the Nevada Anti-SLAPP statute is GRANTED;
Defendants' special motion to dismiss pursuant to the District of Columbia Anti-SLAPP statute is DENIED;
Plaintiff's motion to strike is DENIED as moot; and
Plaintiff's motion for discovery is DENIED;
Pursuant to N.R.S. § 41.670(1), Defendants' request for reasonable attorney's fees and costs is GRANTED. Defendants shall file a statement of their reasonable fees and costs on or before October 15, 2013, to which Plaintiff may respond on or before October 29, 2013.
The Clerk of Court is directed to terminate the motions at docket numbers 16, 17, 26, 27, 56, 65, and 77.
SO ORDERED.
Id. at 19 n. 2 (citations omitted); see also Costa-Gavras, 580 F.Supp. at 1091-92 (borrowing the Palmisano test); Weinstein v. Friedman, No. 94 Civ. 6803(LAP), 1996 WL 137313, at *8-9 (S.D.N.Y. Mar. 26, 1996) (same). This test provides a useful list of the possibly significant contacts in a multi-state defamation action. It is not binding upon this Court, however, as neither the Second Circuit nor the New York Court of Appeals has adopted this nine-factor test. See Lee, 166 F.3d at 545 (noting that the Palmisano test has been adopted by some district courts, but declining to sanction it). Moreover, as one commentator has noted, the test "seem[s] to have spawned numerous [decisions] which entailed contacts that did not point overwhelmingly towards the law of one state, where the issue was resolved by mechanical contact counting." James R. Pielemeier, Choice of Law for Multistate Defamation — the State of Affairs as Internet Defamation Beckons, 35 Ariz. St. L.J. 55, 73 (Spring 2003). Such contact counting is of limited value in determining which jurisdiction has the most significant interest in a tort claim.
ONY, Inc., 720 F.3d at 496 (citations omitted). In any event, while the Milkovich court purported to walk back dicta in Gertz v. Robert Welch, Inc. suggesting that all opinion is constitutionally protected, compare Gertz, 418 U.S. 323, 339-40, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) with Milkovich, 497 U.S. at 17-19, 110 S.Ct. 2695, the protections afforded by Milkovich are, as Judge Sweet recognized shortly after that opinion was handed down, "considerably broader than might be imagined from a reading of popular reports of the opinion privilege's demise." Don King Prods., Inc. v. Douglas, 742 F.Supp. 778, 782 (S.D.N.Y. 1990); see also Robert D. Sack, Protection of Opinion under the First Amendment: Reflections on Alfred Hill, "Defamation and Privacy under the First Amendment," 100 Colum. L.Rev. 294, 322 (2000) (noting, a decade after Milkovich, that the opinion "had little impact on the law. ... Most courts considering opinion since Milkovich have [ ] reached the result that they likely would have before the Supreme Court decided the case"). But see Sack, Sack on Defamation, at § 4:2:4, 4-16 (noting that "[c]ourts are more likely now than before Milkovich to examine closely what is ostensibly an opinion to discern whether it implies provable facts").
Plaintiff relies upon a concurring opinion by Chief Judge Kozinski of the Ninth Circuit in Makaeff v. Trump Univ., LLC, 715 F.3d 254 (9th Cir.2013) (Kozinski, C.J., concurring), in which the Chief Judge and Judge Paez urged the court to reconsider its decision in Newsham. Makaeff is distinguishable from this case because it analyzed California's anti-SLAPP statute, which — unlike Nevada's — does not provide defendants with a separate cause of action. See N.R.S. § 41.670(2) (describing separate cause of action); cf. Makaeff, 715 F.3d at 273 (Kozinski, C.J., concurring) (arguing that Newsham's Erie analysis was wrong because the court failed to first determine whether California's anti-SLAPP statute was substantive, and explaining that the statute is "merely ... a procedural mechanism" because, inter alia, "it creates no rights independent of existing litigation").
Chief Judge Kozinski also apparently believed it to be of no consequence that California's statute — like Nevada's — authorizes an award of attorney's fees if the defendant prevails. See id. at 274. However, the traditional rule is that state statutes authorizing attorney's fees are substantive in nature when they embody a substantial policy of the state. See, e.g., Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 259 n. 31, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (noting that in diversity cases, "state law denying the right to attorney's fees or giving a right thereto, which reflects a substantial policy of the state, should be followed"); Cotton v. Slone, 4 F.3d 176, 180 (2d Cir. 1993) ("Attorney's fees mandated by state statute are available" in diversity cases) (citing Alyeska, 421 U.S. at 259 n. 31, 95 S.Ct. 1612). The Nevada Anti-SLAPP statute "reflects a substantial policy of the state" to protect its citizens' constitutional rights to petition the government and to free speech. See John, 219 P.3d at 1281-82. Application of the Anti-SLAPP statute would also fulfill the dual aims of Erie: discouraging forum-shopping and preventing the inequitable administration of the law. See, e.g., Godin, 629 F.3d at 91-92.
The legal impact of the Nevada Anti-SLAPP statute — at least as applied to this case — is substantive rather than procedural for purposes of Erie. The Nevada statute does not establish a "reasonable probability of success" standard that must be met without discovery, like the California Anti-SLAPP law. See, e.g., Makaeff, 715 F.3d at 274. Rather, as explained below, the Nevada statute immunizes "good faith communication[s]" — defined as communications that are "truthful or... made without knowledge of ... falsity" — thereby effectively raising the substantive standard that applies to a defamation claim. Thus, even if the procedural elements of certain Anti-SLAPP statutes present problems under Erie, see, e.g., 3M Co. v. Boulter, 842 F.Supp.2d 85, 101-03 (D.D.C.2012), those problems are not presented in this case, where the effects of the Anti-SLAPP law (fee-shifting and a heightened substantive legal standard) are substantive.
