Earlier this month, the Nevada Supreme Court kicked a defamation case filed by Nevada Department of Wildlife (NDOW) biologist Carl Lackey back to Washoe County’s Second Judicial District Court.
It was the second time this year the state’s highest court entered such an order in ongoing legal matters concerning Lackey who, in 2017, filed suit against three Lake Tahoe conservation groups for statements made by third-party commenters on their respective social media platforms.
He alleged being the victim of defamation, civil conspiracy, intentional infliction of emotional distress and negligent infliction of emotional distress over comments made on social media. Lackey’s suit initially involved Ann Bryant of the Tahoe Bear League, Carolyn Stark of the NDOW Watch: Keeping them Transparent Facebook page and Mark Smith, a sometimes-contributor to the Lake Tahoe Wall of Shame Facebook page.
The Bear League and Lackey reached a settlement early on, but the lawsuit against Stark and Smith continues. Neither Stark nor Smith—both longtime bear advocates—authored the social media posts cited in Lackey’s lawsuit against them. Both have fought Lackey’s claims with anti-SLAPP motions—and both had their anti-SLAPP motions denied by district court judge Connie Steinheimer, resulting in them appealing those decisions to the Nevada Supreme Court.
“The singular quote that was cited in his lawsuit wasn’t made by me,” Smith said. “I hadn’t even read it until I got notice of the suit. I’m being sued for a contribution made by somebody else on a page I don’t administer—which is part of why I was quite surprised that the lower court rejected our anti-SLAPP motion.”
SLAPP lawsuits, or strategic litigation against public participation, are a common tactic used by people who feel aggrieved by comments uttered in public—increasingly frequently online—to sue their critics. Nevada passed anti-SLAPP legislation in 2013 and has modified the law during subsequent legislative sessions.
Can you imagine if everyone was held responsible for posts that someone else made on their social media pages?”
For an anti-SLAPP motion to dismiss like the ones filed by Stark and Smith to be successful, a defendant must prove two requirements. If those are met, the court must then determine whether the plaintiff has demonstrated with sufficient evidence a probability of prevailing on the claim.
The first requirement for defendants is to prove that the comments at issue fall into one of the four categories of protected communications enumerated in Nevada law. In this case, that meant proving the posts were made “in direct connection with an issue of public interest in a place open to the public or in a public forum.” The second requirement is that the communication “is truthful or is made without knowledge of its falsehood.”
In February, the State Supreme Court determined Stark had met those requirements and remanded her case back to the district court with additional instructions for making the anti-SLAPP analysis.
“Specifically, we instruct the district court to consider the applicability of the Communications Decency 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. … ”
And, just a few weeks ago, the state’s highest court entered a similar decision in Smith’s favor. Now, both he and Stark will await another hearing back in district court in June. In the meantime, Smith said he feels the lawsuit against him has been “bizarre” since day one.
“It is, I believe, Mr. Lackey retaliating against animal activists trying to get the Department of Wildlife to do a better job of managing our wildlife—which is exactly, exactly what the SLAPP law is for, a strategic lawsuit against public participation,” Smith said. “He was trying to shut me up by suing me. And this happened about the same time that he called me a terrorist in front of the Truckee Police Department. And that’s another lawsuit. I’m suing him, the Department of Wildlife, the deputy director and the head of the division that he works for.”
The lawsuit will return to district court now that the Supreme Court has issued its decision on the Anti-SLAPP motions made by Stark and Smith. There, the second prong of Nevada’s anti-SLAPP statute will be considered. The next hearing date is set for June 30.
“The Supreme Court has determined that all of the statements were related to matters of public concern. And they’ve established that they don’t know whether they were made with truth or falsity, and that’s enough to get past that first prong of the statute,” said Stephanie Rice, legal representative for both Smith and Stark.
“Now we’re on to the second prong, which never got considered the first time in the district court. So, the district court is going to consider whether Lackey still has a reasonable chance of success in the lawsuit, despite the fact that these were communications made without knowledge of falsity and were regarding matters of direct public concern,” she said.
Rice was pleased with the Supreme Court’s ruling but said she wasn’t surprised.
“I think that’s why the court came down the way it did—because can you imagine if everyone was held responsible for posts that someone else made on their social media pages?” Rice said. “And Mark wasn’t an administrator of that page during the timeframe. He had been at some point, but he wasn’t even a part of the page when the comments were made. That’s even more concerning.”
Lackey could be liable for their attorneys’ fees and could be forced to pay damages to them should Stark and Smith prevail. But the end of the suit won’t guarantee an end to the bad blood between bear activists and NDOW officials, including Lackey. It’s a tension Smith said has existed at least since a locally known bear called “Charlie” was captured and killed by NDOW in 2011 in Incline Village. To this day, Smith claims Lackey made false statements about the bear’s aggressive behavior in order to justify its killing.
Lackey was reprimanded by the Nevada Commission on Ethics in 2017 for participating in and benefitting from an online fundraising campaign to pay for his lawsuit. The commission said that because he is a public employee, Lackey was not allowed to use his state title as part of his private lawsuit. He was ordered to complete an ethics course and told he was not to withdraw the remaining funds from the GoFundMe campaign.