Spouting Cliches In A Crowded Theater: Steve Wynn's Lawyer Argues For The Dismantling Of Nevada's Anti-SLAPP Law
from the I-HEART-FREE-SPEECH-EXCEPT... dept
Pity the poor lawyer who has to argue on behalf of his employer's desire to curtail the public's free speech rights. Not only are you indirectly arguing on behalf of those who've abused the legal system to stifle speech, but your defensive arsenal is going to be limited to assertions that are ineffectual, blunted, stupid or any combination of the above.
Free speech in the US is (mostly) an absolute. There are very few areas that aren't covered by this Constitutional protection. Defamation is one of those areas. But defamation isn't what so many people apparently believe it is -- i.e., unpleasant things being said about/to them. Many nasty things can be said without rising to the level of defamation, but that's rarely considered before lawsuits get filed. Anti-SLAPP laws -- instituted by far too few states -- ensure that aggrieved parties double-check their allegations before filing a defamation suit.
Nevada has a perfectly fine anti-SLAPP law, but aggrieved parties who'd rather exercise their perceived "right" to use bogus lawsuits as speech suppression devices are looking to carve out everything about the statute that makes it a deterrent. The person chosen to sell this dismantling of legal protections is Mitchell Langberg, outside counsel for Wynn Resorts (and self-proclaimed "expert" on anti-SLAPP laws). Steve Wynn, the company's owner, recently lost a defamation lawsuit in California, thanks to its anti-SLAPP law. Now, he wants the law changed on his home turf. Langberg appeared (by phone) on Nevada Public Radio to argue on behalf of his employer -- as well as on behalf of the Roca Labs and Thomas Cooleys of the nation. When you're sticking up for plaintiffs like these, what do you say? What can you say?
Well, apparently you start by referring to online criticism as "online terrorism" before heading towards even worse assertions.
According to Langberg, the existing law is too broad and offers too much protection to the public. He wants to remove the "clear and convincing evidence" stipulation and replace it with a much lower bar of "some evidence." (He refers to a "70-75% convincing" evidentiary standard, which I don't even know what that means…) He also claims the statute is "intimidating" to businesses, especially the small ones, who feel they must just deal with criticism -- even false criticism -- because they have no way of proving the statements made are false, at least not to the extent that the law demands.
The unspoken summation of these points is this: if potential plaintiffs are finding it hard to prove defamation, chances are it doesn't rise to the level of defamation.
But it gets worse from there. By four minutes into his call, Langberg has referred to Yelp as being a "mechanism" that allows for "online terrorism and character assassination." A few minutes after that and he's reduced to regurgitating anti-speech cliches.
First, there's the qualified support of free speech, which always starts with the person arguing for limiting speech giving his or her First Amendment version of the "some of my best friends are black" argument. ("I'm not racist…")
I support the First Amendment right to free speech. I'm a strong supporter of it. I have represented newspapers in my career against defamation complaints.So far, it's mostly acceptable, although it seems clear Langberg is far more concerned with upholding the rights of the latter group, which apparently values "petitioning" over exercising their right to counter critical speech with speech of their own.
I'm also a strong supporter of people's rights to protect their reputation, which is also a First Amendment right -- the right to petition the government when you've been harmed -- by filing lawsuits.
Then the love for the First Amendment starts slipping.
There is no First Amendment right to say false things.Sometimes true, but context matters (satire, etc.). And statements of opinion are often misconstrued by litigants as false statements.
And then, Langberg destroys his own reputation as an expert on anything speech-related.
There is no First Amendment right to scream "fire" in a theater.Every state's bar association should add a stipulation providing for the banning of any lawyer uttering this phrase from acting as counsel in First Amendment lawsuits. The only people who deploy this phrase are those who can't find anything coherent (or precedential) to support their particular beliefs as to what the First Amendment should cover, rather than what it actually does. Meanwhile, we'll take the opportunity to point to Andy Sellars' excellent new post about all of the many times you can yell "fire" in a crowded theater.
And, continuing his way to the bottom of the rhetorical reef, chained to the mast of his swiftly-sinking arguments, Langberg then asserts that the right to free speech isn't actually a right.
The First Amendment right is a privilege and a responsibility.Now that it's simultaneously a right and a privilege, all sorts of crazy things can be asserted.
There are certain limitations. You can't say anything you want, any time you want.Agreed, but how can anyone not agree with such a robust strawman!
People's reputations are very, very valuable.Certainly.
So there has to be a balance between people's right to speak freely and their necessary responsibility when they abuse that right.What? There is a right to speak freely. Those who disagree hold the same right. You can't really "abuse" the right. You either stay within its bounds or you find yourself outside of its protections. Defamation is outside of that boundary. The law Langberg is arguing against does nothing to prevent the pursuit of defamation suits. But Langberg wants a law that allows him and his clients to hold people "responsible" for protected speech. That's why listeners are being subjected to this list of nonexistent exceptions to the First Amendment. Langberg needs the public to believe hurtful, mean statements of opinion are actually unprotected by the Constitution.
When they make false statements of fact, that's an abuse of that right.No. It isn't. It's something not covered by the First Amendment. It isn't an "abuse" of that right. Someone who steals a gun from someone's house isn't "abusing" his Second Amendment right to keep and bear arms. He's a thief, not someone who acted irresponsibly within the confines of that right. Langberg is trying to paint protected and unprotected speech the same shade of gray.
On top of that, Langberg keeps steering the conversation away from who he's actually arguing for -- Wynn Resorts, a large corporation with a litigious background. He claims it's small businesses that will be hurt the most by the loss of the option to file bogus lawsuits. He continually asserts that the gutted, stripped law will also effectively deter frivolous lawsuits.
But his arguments against the existing anti-SLAPP lawsuit are contradictory. He says the stringent evidentiary standards will result in possibly legitimate cases being tossed out on "day one," with the plaintiffs being saddled with the defendant's legal fees -- something that could put these supposed "small businesses" out of business. Really? If suits can be tossed "before discovery, before a jury trial," as Langberg describes it, then there certainly can't be much in legal fees amassed by the point the court tosses the case.
Beyond that, Langberg overstates the law's current demands in terms of the level of proof needed to follow through on a defamation suit. Langberg portrays it as an almost-insurmountable obstacle of "clear and convincing evidence." As Marc Randazza points out later, the current statute demands no such thing.
Our current statute just requires the plaintiff to prove a "probability of prevailing." Not "most likely." A "probability."Good question. Langberg would apparently like to be applying his signature to more complaints, but state law sets the bar too high. Langberg isn't quite the First Amendment fan he portrays himself as. He's a fan of his version of the First Amendment. Unfortunately for him, the state's current anti-SLAPP law won't allow him to fully exercise his interpretation of other people's rights.
If you can't get over that and you're a licensed attorney, why are you putting your signature on that complaint?
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Filed Under: anti-slapp, fire, free speech, marc randazza, mitchell langberg, nevada, slapp, steve wynn, theater
Companies: wynn resorts
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Buddies in collage perhaps?
I wonder if he happened to go to the same law school as Charles 'Rapeutation' Carreon? Their reaction to criticism, whether of themselves or their clients, seems to be pretty similar anyway.
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ˈsärˌkazəm/
noun
noun: sarcasm; plural noun: sarcasms
the use of irony to mock or convey contempt.
"his voice, hardened by sarcasm, could not hide his resentment"
synonyms: derision, mockery, ridicule, scorn, sneering, scoffing; More
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No, the truth is an unwinnable defamation lawsuit if your don't have the resources to fight back.
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Absolute?
Except for whistleblowers, any speech against cops, any criticism against companies selling products, Apple, any cable company, and anyone who holds a copyright.
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Fire!
True, any lawyer should know the source of that quote, and the subsequent history which effectively negated it as a Supreme Court decision on Free Speech. Then the lawyer should be disbarred and run out of town on a rail.
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http://www.vegasinc.com/business/gaming/2015/mar/19/elaine-wynn-continues-fight-stay-wynn-resorts-bo ar/
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Acute is sort of the opposite of chronic - acute in the medical context (which this joke is) means sudden, not severe. A lottery winner may have acute affluenza. I imagine Wynn's is chronic.
Thanks for ruining the joke, you say? Why, you're welcome!
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Stand(ing) in the place where you work (now face West)
IANAL, But if he's really working for Wynn, he has no standing to represent small businesses in this matter, so that line of reasoning is ultimately irrelevant.
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He can talk about whatever he wants in a radio interview; this wasn't a court proceeding.
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Mostly absolute
That is mostly an oxymoron. No, actually, it's totally an oxymoron.
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It would indeed be surprising if there were any place that didn't have some sort of "disturbing the peace" or "disorderly conduct" laws on the books -- or at a very minimum, cops that believe such laws exist.
http://www.criminaldefenselawyer.com/crime-penalties/federal/disorderly-conduct.htm
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Nonetheless, the act of yelling fire in a theater is not against the law. The law I think you were trying to talk about that actually comes close is that you are not allowed to say things that a reasonable person would expect to cause a riot or somesuch -- but I don't think that a reasonable person would expect any such thing, since that's certainly not what would happen.
In the old days, when theaters were massive lethal firetraps that caught on fire with alarming frequency and (we're talking 19th century), that equation would be completely different.
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Speaking of theater etiquette, wasn't Pee-Wee Herman arrested by police in a movie theater for something along the lines of "disorderly conduct" instead of simply being asked to leave?
But then, weren't the people in that theater there for the purpose of watching something similar
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He lost the argument early on:
Just like the lack of right not to be offended, AFAICT there is no Constitutional right to one's reputation in any form.
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Good "call out" on the "fire in theater" comment. It was not appropriate or applicable for the topic.
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It may not be good for lawyers who make money filing such frivolous lawsuits by both limiting the billable hours of such cases and penalizing the large companies that use them to silence their critics such that they are less likely to hire such lawyers in the first place. But surely there are plenty of other valid cases for those lawyers to work on?
Not to mention the burden on small companies or individuals having to defend against such frivolous lawsuits potentially bankrupting them before they get off the ground.
For example: UMG v. Veoh (yes, that was a copyright case not a free speech one, but still a case of small business bankruptcy caused by having to defend against a frivolous lawsuit by a large company).
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But when a anti-slapp motion is filed, that changes. Now, if the defendant can prove that the speech is protected under the statute, The plantiff must now highlight the defamitory or libelous statemtents, And briefly lay out why they believes they will win in a court of law. This allows the judge to decide if the statements are clear statements of opinion or that the statements were matters of record, ect. To avoid being a frivolous case the plantiff must now display evidence, that if it was accepted, would be sufficient to win a case. The suit must be based on evidence, not speculation.
A better breakdown of the processes by a lawyer who is experienced in Anti-SLAPP statutes and their effects can be found here: http://popehat.com/2012/06/07/why-yes-i-am-into-slapping/
Could you perhaps explain why the Nevada statute is a bad one?
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AND, by the way, every plaintiff has to identify the specific defamatory statements when they file a lawsuit.
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You object to that? That sounds like a fantastic idea.
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What I heard
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Dead
http://www.reviewjournal.com/news/nevada-legislature/bill-weaken-nevada-s-anti-slapp-statute-ca lled-dead
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