Most anti-SLAPP – strategic litigation against public participation – cases are meant to be resolved within a few months. The lawsuit filed by a Nevada Department of Wildlife biologist against Lake Tahoe area bear advocates was just dismissed on an anti-SLAPP motion this week.
That’s more than five years after NDOW’s Carl Lackey sued Mark Smith and Carolyn Stark who ran the Facebook page, NDOW Watch — Keeping Them Transparent.
Lackey alleged defamation against the two for comments posted by others to the page. He filed a lawsuit against the two in 2017.
Stark, after she was sued by Lackey, purchased a paid post on This Is Reno announcing the lawsuit.
She said at the time she “was shocked to be served with a lawsuit at the end of March by the self-described ‘Bear Guy’ Carl Lackey, an NDOW employee. The suit bizarrely tries to assert that [she] is responsible for comments made on the page by other people.”
The case has been winding its way through court. It was twice addressed by the Nevada Supreme Court after Stark and Smith appealed rulings by Washoe County Second Judicial District Court Judge Connie Steinheimer.
In 2020, one of Steinheimer’s determinations was called erroneous by Supreme Court Justice James Hardesty.
“Each of the … 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, demonstrating 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.”
Months later, the state court issued another decision in the case.
“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, the attorney for Smith and Stark at that time.
Steinheimer continued to allow discovery in the case. Last year, Lackey’s attorneys wanted to gain access to Smith and Stark’s Facebook accounts to determine whether they encouraged others to post what they alleged were defamatory comments.
Rice vigorously protested. She filed a protective order against Lackey’s attorneys, alleging the Facebook access was above and beyond what Steinheimer had already allowed, and it was not requested in a timely manner.
“As of November 13, 2021, Plaintiff has already been afforded … 368 days to conduct ‘limited discovery’ in this action,” she wrote.
“I can imagine parties and lawyers with both sides are frustrated with how long it took to get here.”
A judicial commissioner mostly agreed. He determined “Defendants were not obligated to log into their Facebook accounts and provide Plaintiff information therein…” during a deposition last year.
Zachary Shea and Rew Goodenow with the Parsons Behle & Latimer Firm, defending Lackey, repeatedly alleged the Facebook comments were defamatory.
“It cannot be simply taken as axiomatic that an opinion is not defamation, and in this case, given the evidence, it would be inappropriate to do so,” they wrote in July. “Defendant Stark also erroneously relies on the incorrect assumption that a defendant may not be liable for the statements of third parties, however as analyzed supra this assertion is unavailing when Defendant took such an active role in the development of the defamatory material, and therefore herself became a provider of it.
“Nevada’s Anti-SLAPP statute is designed to protect the voices of persons of modest resources from being forced out of the public forum by those with extreme influence, wealth, and power,” they continued. “Here, the statute has been turned on its head, and its protections have been perverted by bad actors with considerable means, and used to hamstring a workaday biologist in his now years-long plea to stop the defamatory and harassing behavior online and in the real world, to remove the scars of that behavior, and to be made whole for the damage.”
Steinheimer didn’t buy it.
The long standing federal Communications Decency Act, section 230 in particular, grants protections for website operators. It holds in part that publishers are not liable for comments made by others on their platforms.
“Lackey has failed to show that Smith’s actions on [Facebook pages] materially contributed to the alleged unlawfulness of the post in question,” Steinheimer wrote. “Smith cannot be treated as the publisher or speaker of third-party posts. Because Lackey is unable to provide prima facie evidence … that Smith made a false or defamatory statement concerning Lackey, Smith’s special motion to dismiss is granted in regard to Lackey’s claim for defamation.”
Steinheimer further said the CDA specifically provides Smith with immunity from third party comments.
Lackey could owe as much as $250,000
Anti-SLAPP motions are filed in cases where people uttering speech – written or oral – are then sued for what they say in an attempt to stifle their speech or to obtain redress for that speech.
Plaintiffs who file defamation cases are on the hook for attorney fees and $10,000 in damages when an anti-SLAPP motion is granted by a judge.
Lackey’s case, because of the inordinate amount of time spent with multiple attorneys, means legal bills have been piling up for more than five years.
Attorneys for both parties either did not respond to a request for comment or would not comment on this story. (Disclosure: Attorney Luke Busby, representing the defendants, is This Is Reno’s attorney in two public records lawsuits against the City of Reno and Reno Police Department).
Media law professor Patrick File at the University of Nevada, Reno said Steinheimer ultimately made the right decision under Nevada’s anti-SLAPP law, as well as the CDA.
“When this lawsuit first came up in 2017, it seemed like it should be a pretty straightforward dismissal under federal law protecting website hosts, even if Nevada’s anti-SLAPP law didn’t rule it out,” he wrote. “I can imagine parties and lawyers with both sides are frustrated with how long it took to get here, given that both state and federal law are intended to resolve these suits quickly.”
Marc Randazza, a Las Vegas-based attorney who fights defamation cases and helped craft Nevada’s anti-SLAPP statutes, called Steinheimer’s ruling interesting.
“It seems like there was an awful lot of unnecessary motion practice in this case. Sometimes the lower court gets things wrong, and it requires an appeal to correct it,” he told This Is Reno. “When that happens, the Plaintiff is the one who is on the hook for all of that, the motion practice, the appeal, the remand — all of it.”
He further called Lackey’s claims “ill fated.”
“The standard of care for a lawyer in this state should be, at this point, to know how the anti-slapp law works,” he added. “When you bring an ill-fated defamation claim here, you run a very significant risk for your client. In a case like this one, where they fought over every little thing, up and down the appeals process, the plaintiffs’ lawyers should have seen this end coming a mile away.”
He said the fee award should be at least $100,000. Smith, reached yesterday, said the amount is probably much higher.
“Today was a good day – for me personally, and for wildlife advocates in general,” he wrote in an email. “I don’t have a total for my attorney fees and related costs handy (the case has been going on for years!) but it is about $100,000.
“And I am one of two defendants who just won. We shared an attorney for most of the case; thus, her fees should be about the same. I will be seeking that plus the statutory punitive damages of $10,000 as well as additional punitive damages yet to be determined.
“Between the two defendants, I suspect the combined claim will be north of $250,000,” he added.
A SLAPP-back lawsuit could also be filed against Lackey. That’s what happened last year to Storey County Commissioner and developer Lance Gilman. He owed more than $200,000 in legal fees and penalties after suing journalist and commentator Sam Toll for defamation.
He too lost and ended up resolving his cases with a confidential settlement.