First Amendment lawyer calls motion a misuse of Nevada law

UPDATE (Feb. 16, 2022): Simon has withdrawn his lawsuit against the school district. No reason was provided to This Is Reno.

The Washoe County School District has filed two motions to get a lawsuit by governor candidate Fred Simon dismissed. School attorneys said the school board’s free speech rights would be violated if it cannot run an orderly meeting.

Simon spoke during public comment at a raucous September 2021 meeting. He spoke during public comment and was interrupted by Taylor. Taylor said he was making personal attacks. She also warned the audience about making noise, such as applauding.

“She was arrogant and she has been in the past, and there’s no necessity to that Ms. Taylor, and you have [to] stop trying to control people,” Simon said.

Taylor then sent the meeting into recess while Simon was still speaking.

WCSD attorneys said Simon, a doctor from Douglas County and candidate for governor, made calls to intimidate the school board. 

“We’re going to bring it to them. We’re going to intimidate the school board and supervisors up in Reno, and that’s where we’re starting here (referring to his campaign),” Simon said last year, as noted by WCSD attorneys.

Simon sued, saying Taylor and the school board violated his free-speech rights and the board violated the open meeting law. WCSD attorneys in late January filed an anti-SLAPP motion for the case’s dismissal.

SLAPP stands for strategic lawsuit against public participation. Anti-SLAPP statutes were passed to protect people from being sued for their speech.  

Virginia City journalist Sam Toll was sued by Storey County Commissioner and brothel owner Lance Gilman for publishing evidence on his Storey Teller website that showed Gilman did not live full time in Storey County.

A successful anti-SLAPP motion can get a case quickly dismissed with the plaintiff owing fees and damages to the person they sued. Toll prevailed in his case and received a confidential settlement after the courts said Gilman owed him as much as $200,000.

“This lawsuit was specifically brought to inhibit and confound the Board, its representative, Board President Angela Taylor (President Taylor), and the District from carrying out its lawful duty of conducting the people’s business in an open meeting,” WCSD attorneys wrote. “It is a lawsuit by Plaintiff to prevent the District from exercising its free speech right in direct connection with an issue of public concern.”

A member of the public is not guaranteed uninterrupted public comment.”

A government entity filing an anti-SLAPP motion is abnormal.

“Anti-SLAPP laws were inspired by, and are usually put to use in, the opposite types of situations,” said Patrick File, a media law professor at the University of Nevada, Reno. “They are intended to work against powerful individuals or entities — including the government — using litigation not to seriously address a legal concern but as a meritless means to silence or punish outspoken people or organizations of limited means.

“The government’s ability to speak freely on issues of public concern is generally not under much threat.”

A case in Douglas County from 2009 is a precedent for a government anti-SLAPP motion. 

Marc Randazza, a Las Vegas-based attorney, has prevailed in free-speech cases with anti-SLAPP motions. He said the school district’s approach is concerning.

“I do not think it is faithful to the legislative intent of the statute to even permit the government to use the law against a citizen,” he said. “It seems to me that they are trying to shoehorn the Anti-SLAPP law into a tool to silence dissent, rather than to promote the law’s goal of supporting and protecting dissent.

“Given how politicized things have gotten, I could see an unprincipled decision granting this motion. But, I can not see a principled one,” he added.

School District asserts immunity

WCSD attorneys also want the case dismissed because they say the trustees have immunity from this kind of lawsuit. 

“During a time of civil unrest directed at school boards both nationwide and locally, the Board faces the difficult responsibility of balancing the Board’s business while concurrently ensuring orderly conduct and the public’s safety at public meetings,” attorneys argued. “In order to achieve this important balance, the Board limits public comment that is ‘irrelevant, repetitious, slanderous, offensive, inflammatory, irrational, or amounting to personal attacks or interfering with the rights of other speakers.’

“The courts also overwhelmingly recognize that even if the discretionary-function resulted in the deprivation of a First Amendment right, which it did not here, the chair of a meeting is still entitled to discretionary-function immunity. The law even states that the President could abuse this discretion and immunity still applies,” they added.

They argue Taylor was within her rights to shut down the meeting.

“Calling someone arrogant is objectively a personal attack, but even if it is not, President Taylor, in her discretion, reasonably believed it to be one,” they wrote. “A member of the public is not guaranteed uninterrupted public comment.”