The Nevada Supreme Court last week kicked back to Washoe County’s Second Judicial District Court a defamation case filed by Nevada Department of Wildlife (NDOW) biologist Carl Lackey.
Lackey claimed he was defamed on the NDOW Watch Facebook page and sued the page’s manager, Carolyn Stark, a noted critic of NDOW’s policies on bears.
“Lackey brought suit against Stark based on these third-party comments,” the Supreme Court judges wrote. “He alleged claims of defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and civil conspiracy.”
Stark, however, did not author the posts in question. She fought Lackey’s claims with an anti-SLAPP motion. SLAPP lawsuits, or strategic litigation against public participation, are common tactics for people who feel aggrieved by comments uttered in public, often online, to sue their critics.
Nevada passed in 2013 anti-SLAPP legislation in order to prevent such people from filing lawsuits that ordinarily are protected by the First Amendment. The law was strengthened during the 2015 legislative session but watered down in subsequent years.
“Public discourse, particularly as embodied by the press, is a critical part of governance in America. The current social and political landscape makes it more important than ever that all citizens—journalist or not—be free to openly, honestly and lawfully comment on the world around them,” according to Justin Shiroff, Las Vegas attorney, writing about Nevada’s anti-SLAPP law. “Nevada’s strong anti-SLAPP protections, coupled with Nevada’s clear application of the fair report privilege, serve as a bulwark against lawsuits that would otherwise dissuade or penalize those who would appropriately exercise their First Amendment rights.”
But the district court decision by Judge Connie Steinheimer sided with Lackey, which then prompted Stark to appeal to the Nevada Supreme Court.
Justice James Hardesty, writing the unanimous decision, called Steinheimer’s ruling erroneous.
“Each of the four comments at issue expresses a critique of NDOW’s handling of the bear population or a critique of Lackey in his role as an NDOW biologist, demonstration sufficient closeness to the asserted public interest,” Hardesty wrote. “Because Stark’s affidavit established that the comments were protected communications and were truthful or made without knowledge of their falsehood, Stark met her burden under the first prong of the anti-SLAPP analysis.”
The State Supreme Court remanded the case back to the district court with additional instructions for the anti-SLAPP analysis.
“Specifically, we instruct the district court to consider the applicability of the Communications Decent Act … in determining whether Lackey can demonstrate ‘a probability of prevailing on the claim,'” the judges ordered. “We further advise the district court to permit discovery to the extent necessary to determine whether the CDA immunizes Stark from liability in its consideration…”
Should Stark ultimately prevail, Lackey could be liable for attorneys’ fees and up to $10,000 in damages.
Read the Nevada Supreme Court Ruling below.
