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

Thu, May 14th 2015 6:14am — Tim Cushing

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.

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.

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.

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."

If you can't get over that and you're a licensed attorney, why are you putting your signature on that complaint?

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.

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Filed Under: anti-slapp, fire, free speech, marc randazza, mitchell langberg, nevada, slapp, steve wynn, theater
Companies: wynn resorts

34 Comments

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That One Guy (profile), 14 May 2015 @ 4:49am

Buddies in collage perhaps?
Well, apparently you start by referring to online criticism as "online terrorism" before heading towards even worse assertions.

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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Anonymous Coward, 14 May 2015 @ 6:23am

It's not defamation or libel when it is true.
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RD, 14 May 2015 @ 6:41am

Absolute?
"Free speech in the US is (mostly) an 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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Anon, 14 May 2015 @ 7:10am

Fire!
IIRC, "can't yell 'Fire!' in a crowded theatre was the phrase coined by Oliver Wendell Holmes to justify imprisoning those who distributed leaflets urging young men to resist the draft in WWI. Later court decisions backtracked on this and decided that the decision was too restrictive. And Holmes equated distributing a pamphlet urging draft resistance to the reckless act of causing a panic stampede.

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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Rich, 14 May 2015 @ 7:18am

Re:
It is when you don't have the resources to fight back.
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James Burkhardt (profile), 14 May 2015 @ 7:39am

Re: Re:
So the truth is defamation (by definition a false statement) if your don't have the resources to fight back? what resources does the proven (in a court of law) thief, need to have on hand for someone calling him a thief to be the truth and not defamation? How exactly do you go fighting back against that?
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Baron von Robber, 14 May 2015 @ 7:58am

It's understandable the position that Steve Wynn has. He suffers from acute and chronic affluenza. One symptom of affluenza is hypodermatitis.
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Dave Cortright (profile), 14 May 2015 @ 8:00am

Stand(ing) in the place where you work (now face West)
[Mitchell Langberg, outside counsel for Wynn Resorts], claims it's small businesses that will be hurt the most...

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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Just Another Anonymous Troll, 14 May 2015 @ 8:05am

Re: Re: Re:
sar·casm
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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John Fenderson (profile), 14 May 2015 @ 8:21am

Re: Stand(ing) in the place where you work (now face West)
If he's really working for Steve Wynn, then he doesn't give two shits about small businesses in the first place.
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Anonymous Coward, 14 May 2015 @ 8:49am

Re:
Sure it's not just Steve Wynn's position? Recently his ex-wife was fighting for her position on his company's board of directors.
http://www.vegasinc.com/business/gaming/2015/mar/19/elaine-wynn-continues-fight-stay-wynn-resorts-bo ar/
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Anonymous Coward, 14 May 2015 @ 8:56am

Re:
Gluteal hypodermatitis.
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nasch (profile), 14 May 2015 @ 9:14am

Re:
It's understandable the position that Steve Wynn has. He suffers from acute and chronic affluenza.

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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nasch (profile), 14 May 2015 @ 9:14am

Re: 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.

He can talk about whatever he wants in a radio interview; this wasn't a court proceeding.
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nasch (profile), 14 May 2015 @ 9:15am

Mostly absolute
Free speech in the US is (mostly) an absolute.

That is mostly an oxymoron. No, actually, it's totally an oxymoron.
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Justin, 14 May 2015 @ 9:54am

It's only illegal to yell fire in a theater, if there is no fire.
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John Fenderson (profile), 14 May 2015 @ 10:16am

Re:
It's not illegal to yell fire in a crowded theater, even if there isn't a fire.
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Anonymous Coward, 14 May 2015 @ 11:10am

Re: Stand(ing) in the place where you work (now face West)
Great REM reference.
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Anonymous Coward, 14 May 2015 @ 11:21am

Re: Re:
"It's not illegal to yell fire in a crowded theater, even if there isn't a fire."

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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z! (profile), 14 May 2015 @ 12:59pm

Ref. the First Rule of Holes....

He lost the argument early on:
I'm also a strong supporter of people's rights to protect their reputation, which is also a First Amendment right

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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M Langberg, 14 May 2015 @ 1:13pm

Re:
Indeed, the right to protect one's reputation by filing a lawsuit IS a First Amendment right - it is the First Amendment right to petition the government to redress grievances. California actually has a pretty good anti-SLAPP law. Nevada's is quite different.
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Mitchell Langberg, 14 May 2015 @ 1:25pm

Re: Re:
P.S.
Good "call out" on the "fire in theater" comment. It was not appropriate or applicable for the topic.
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John Fenderson (profile), 14 May 2015 @ 1:34pm

Re: Re: Re:
It would be closer to "disturbing the peace" than "disorderly conduct". But you'd be doing it on private property. What would happen is that the theater would ask you to leave. If you didn't, then you'd be breaking trespassing laws. If you became unruly when they asked, then you'd also be breaking the laws that you mention.

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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Anonymous Coward, 14 May 2015 @ 2:40pm

Re: Re: Re: Re:
If police were there, and witnessed what they considered a "crime" under the local laws then they could certainly make an arrest, regardless of whether it was on state-owned or privately-owned property.

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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Zonker, 14 May 2015 @ 3:15pm

Re: Re:
And nothing prevents you from filing such a lawsuit. But if it is a frivolous lawsuit it should be dismissed early at the plaintiff's expense, otherwise it infringes the free speech rights of those they attempted to silence. On the other hand, if your plaintiff's case has merit then it can still proceed on those grounds.

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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Mitchell Langberg, 14 May 2015 @ 3:38pm

Re: Re: Re:
I agree with Zonker. Question is, what is the test for whether it is frivolous, at the outset of the case?
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JMT (profile), 14 May 2015 @ 5:10pm

Re: Re: Re:
"So the truth is defamation (by definition a false statement) if your don't have the resources to fight back?"

No, the truth is an unwinnable defamation lawsuit if your don't have the resources to fight back.
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JMT (profile), 14 May 2015 @ 5:13pm

Re:
John's explained why you're wrong, but I'd love to hear why you think you're right.
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Coyne Tibbets (profile), 14 May 2015 @ 5:54pm

What I heard
... blah... blah... blah... unrestricted corporate free speech... blah... blah... right to lie... blah...rights belong to the rich... blah... blah... blah... blah... blah... individuals should shut their lousy lying, interfering mouths... blah... blah... blah...
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James Burkhardt (profile), 14 May 2015 @ 7:17pm

Re: Re: Re: Re:
Ah, you see thats were the purpose of an anti-slapp suit sets in. you see, until the actual case is litigated in the court room, the plantiff does not need to display any evidence, nor even spell out what defamatory or libelous statements have been made. This allows a frivolous plantiff to bog down a defendant with costly discovery motions before even telling the defendant (or the court) when and where a tort was commited. The only recourses to end a lawsuit in the absence of a anti-Slapp statute can both be defeated with unsubstantiated claims by the plantiff.

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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Mitchell Langberg, 14 May 2015 @ 7:54pm

Re: Re: Re: Re: Re:
Sure. In general terms: In California, under the slapp statute, a plaintiff must show that there is evidence sufficient to support all of the elements of its claim. If the plaintiff does not have evidence that supports his claim, the case is frivolous and gets thrown out because it is a meritless lawsuit. If the so tiff has evidence to support each element of its claim, the he can proceed and a judge or jury will later weight the plaintiff's evidence against the defendant's evidence and decide who prevails. Nevada's law is much different. It requires a plaintiff to have "clear and convincing evidence" to prove a probability of prevailing at the outset of the case - including, in appropriate cases (for example, reviews of businesses) clear and convincing evidence that the defendant knew what he said was false or had serious doubt about the truth. And, the plaintiff must do that in less than 7 days. That is a much higher standard and does not simply eliminate meritless lawsuits.
AND, by the way, every plaintiff has to identify the specific defamatory statements when they file a lawsuit.
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nasch (profile), 14 May 2015 @ 8:19pm

Dead
Apparently the bill is dead.

http://www.reviewjournal.com/news/nevada-legislature/bill-weaken-nevada-s-anti-slapp-statute-ca lled-dead
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nasch (profile), 14 May 2015 @ 8:25pm

Re: Re: Re: Re: Re: Re:
AND, by the way, every plaintiff has to identify the specific defamatory statements when they file a lawsuit.

You object to that? That sounds like a fantastic idea.
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Mitchell Langberg, 14 May 2015 @ 8:29pm

Re: Re: Re: Re: Re: Re: Re:
I don't object at all. Just clarifying a point you previously made.
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