Rosen v. Tarkanian

• Decision Date: 12 December 2019
• Docket Number: No. 73274,73274
• Citation: 453 P.3d 1220
• Parties: Jacky ROSEN, an Individual; and Rosen for Nevada, a 527 Organization, Appellants, v. Danny TARKANIAN, Respondent.
• Court: Nevada Supreme Court

453 P.3d 1220

Jacky ROSEN, an Individual; and Rosen for Nevada, a 527 Organization, Appellants,

v.Danny TARKANIAN, Respondent.

No. 73274

Supreme Court of Nevada.

FILED DECEMBER 12, 2019

OPINION

By the Court, HARDESTY, J.:

In this appeal, we consider the appropriate test for determining if protected communications are made in "good faith" under Nevada’s anti-SLAPP statutes. At issue in this case are allegedly defamatory statements made by appellant Jacky Rosen during her political campaign against respondent Danny Tarkanian. After being sued for defamation by Tarkanian, Rosen filed a special motion to dismiss the action under the anti-SLAPP statutes, which require her to demonstrate that the protected statements were made in good faith—that is, that they were true or made without knowledge of any falsehood. We hold that, in determining whether the communications were made in good faith, the court must consider the "gist or sting" of the communications as a whole, rather than parsing individual words in the communications. We further conclude that Rosen showed by a preponderance of the evidence that she made the statements in good faith under the first prong of the anti-SLAPP analysis, and Tarkanian cannot demonstrate with prima facie evidence a probability of prevailing on this claim under the second prong. Therefore, we conclude that the district court erred in denying Rosen’s special motion to dismiss and remand to the district court to grant the motion.

FACTS

Danny Tarkanian ran against Jacky Rosen to represent Nevada in the United States House of Representatives in 2016. During the race, Rosen uploaded an ad entitled "Integrity" to YouTube and other social media platforms. This ad makes up the crux of the dispute before us. In the ad, Rosen and Rosen for Nevada (collectively, Rosen) make three statements. First, Rosen claims that "Danny Tarkanian set up 13 fake charities that preyed on vulnerable seniors." Second, Rosen states that "seniors lost millions from the scams Danny Tarkanian helped set up." Third, Rosen states that the charities Tarkanian set up were "fronts for telemarketing schemes." The first two statements cite to articles published in the Las Vegas Review-Journal, and the third directly quotes from a Las Vegas Sun article.

After Rosen began running this ad, Danny Tarkanian sent her a cease and desist letter, in which he explained that the statements in the ad were found to be defamatory in a prior court case. The case Tarkanian referenced arose out of Tarkanian’s earlier race against State Senator Mike Schneider for a seat in the Nevada State Senate. During that race, Schneider said on a television show that Tarkanian "set up 19 fraudulent corporations for telemarketers." Later, Schneider sent out mailers that asked: (1) "Why [d]id Danny Tarkanian betray the most vulnerable among the elderly?" and (2) "Why did [Tarkanian] set up an organization to cheat us out [of] over $2 million of our hard-earned retirement money?" Tarkanian filed suit against Schneider, which culminated in a jury verdict finding that the statements constituted slander and libel per se. Schneider and Tarkanian settled after the jury verdict was entered.

Upon receiving the cease and desist letter, Rosen continued publishing the ad online. After the election was over, Tarkanian filed a complaint in district court against Rosen, alleging libel per se, slander per se, and intentional infliction of emotional distress. Shortly thereafter, Rosen filed an anti-SLAPP special motion to dismiss in accordance with NRS 41.660. In her anti-SLAPP motion, Rosen asserted that she believed that the statements were true based on multiple public accounts and Tarkanian’s own admissions about his involvement with the corporations. The district court denied the motion, determining that Rosen did not meet her burden under the first prong of the anti-SLAPP analysis, as she did not show that the statements in the ad were made in good faith. The court noted that some of Rosen’s statements were similar to those made by Schneider, which were adjudicated as defamatory, but also found that Rosen’s statements relied upon statements made by Steven Horsford and Ross Miller in their campaigns subsequent to the Schneider defamation action, and that those statements by Horsford and Miller were never addressed in a court proceeding. Thus, the district court found that it could not ascertain whether the statements at issue were true at this preliminary stage. The district court also determined that, in any event, Tarkanian met his burden under the second prong by showing prima facie evidence of a probability of success on his defamation case and that it should be up to the jury to determine whether the challenged statements were truthful and whether they were made with actual malice. Rosen now appeals, claiming that the district court erred in its analysis.

DISCUSSION

The district court erred in finding that the communications were not made in good faith

We review the denial of an anti-SLAPP motion de novo.

Coker v. Sassone, 135 Nev. 8, 432 P.3d 746, 748-49 (2019). The anti-SLAPP statute immunizes from liability "[a] person who engages in a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern." NRS 41.650 (emphasis added). Under the first prong of the anti-SLAPP statute, we evaluate "whether the moving party has established, by a preponderance of the evidence," that he or she made the protected communication in good faith. NRS 41.660(3)(a) ; see also Coker, 135 Nev. 8, 432 P.3d at 749. Only after the movant has shown that he or she made the protected statement in good faith do we move to prong two and evaluate "whether the plaintiff has demonstrated with prima facie evidence a probability of prevailing on the claim." See NRS 41.660(3)(b).

Here, the parties agree that the statements were "aimed at procuring a n y ... electoral action, result or outcome," which is political speech covered by the anti-SLAPP statute. NRS 41.637(1) ; see also, e.g., Collier v. Harris, 240 Cal.App.4th 41, 192 Cal. Rptr. 3d 31, 39-40 (2015) ("The character and qualifications of a candidate for public office constitutes a public issue or public interest for purposes of" the anti-SLAPP statute; therefore, the statute "applies to suits involving statements made during political campaigns." (alteration in original) (internal quotation marks omitted)). Since the parties agree that the communications in the ad were protected speech, the dispute in this case centers on whether the communications were made in good faith. A communication is made in good faith when it "is truthful or is made without knowledge of its falsehood." NRS 41.637 ; see also Delucchi v. Songer, 133 Nev. 290, 300, 396 P.3d 826, 833 (2017).

Rosen asserted in her anti-SLAPP motion that she made the statements in good faith, but she did not attach a sworn affidavit to her motion asserting as such. Thus, we must look to the evidence that Rosen provided to determine whether the statements were made in good faith. Cf. Coker, 135 Nev. 8, 432 P.3d at 750 (explaining that when an attached affidavit does not address the issue of contention in the statements, courts look to the evidence the movant provides to show that statements were made in good faith). A determination of good faith requires consideration of all of the evidence submitted by the defendant in support of his or her anti-SLAPP motion.

In support of her special motion to dismiss, Rosen submitted at least nine newspaper articles that reported that Tarkanian incorporated and/or was the registered agent for at least 13 entities that were found to be fraudulent telemarketing schemes that solicited millions of dollars from seniors. Four of these articles included direct admissions from Tarkanian of these facts. Rosen also provided a letter from a former Assistant U.S. Attorney confirming the facts in the articles and two sets of pleadings from court cases demonstrating that individuals in charge of the companies in question were indicted or convicted of fraud.

In addition, Tarkanian admitted in his opposition to the anti-SLAPP motion that substantially identical statements made by his political opponents in two of his earlier campaigns for public office were substantively true. In one, Ross Miller stated that Tarkanian "served as the resident agent and attorney for many fraudulent telemarketing organizations who bilked senior citizens out of millions of dollars." In another campaign, Steven Horsford’s political ads included two statements—"Tarkanian worked for telemarketing scammers" and Tarkanian "has been involved, as a businessman and lawyer, with at least 13 fraudulent charities."

Rosen argues that while all the ads differ slightly, the gist of all the ads are true and therefore the statements were made in good faith. Tarkanian, on the other hand, contends that individual words in the statements made by Horsford and Miller are sufficiently different from words in Rosen’s, such that she cannot rely on those statements as evidence that she believed her own statements to be true. Primarily, Tarkanian appears to take issue with the use of the words "set up" in Rosen’s statements to describe Tarkanian’s role in the telemarketing organizations, rather than the words "worked for," "served as the resident agent and attorney for," or "has been involved ... with," as used by Horsford and Miller in their statements. Notably, Tarkanian admits that he served as a resident agent, filed incorporation paperwork, and "provided routine legal work for companies that ended up operating telemarketing scams." But he contends that "set[ting] up" a corporation is different from "work[ing] for" or "serv[ing] as the resident agent and attorney for" a corporation, as it suggests that Tarkanian’s role in the companies was more intimately involved. This, however, is a distinction without a difference. It is...