Adelson v. Harris
| Decision Date | 19 December 2014 |
| Docket Number | Docket No. 13–4173–cv. |
| Citation | 774 F.3d 803 |
| Parties | Sheldon G. ADELSON, Plaintiff–Appellant, v. David A. HARRIS, Marc R. Stanley, and National Jewish Democratic Council, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Questions certified. James R. Ferguson, Mayer Brown LLP, Chicago, IL (Michele L. Odorizzi, Demetrios G. Metropoulos, Mayer Brown LLP, Chicago, IL; Andrew L. Frey, Mayer Brown LLP, New York, N.Y.; L. Lin Wood and Jonathan D. Grunberg, Wood, Hernacki & Evans, LLC, Atlanta, GA, on the brief), for Plaintiff–Appellant.
Lee Levine (Seth D. Berlin, Gayle C. Sproul, Chad R. Bowman, Rachel F. Strom, on the brief), Levine Sullivan Koch & Schulz, LLP, New York, N.Y., for Defendants–Appellees.
Before: CALABRESI, RAGGI, and CHIN, Circuit Judges.GUIDO CALABRESI, Circuit Judge:
This case raises two significant and unresolved questions of Nevada statutory and common law. First, does a hyperlink to source material about judicial proceedings in an online petition suffice for purposes of applying the common law fair report privilege? Second, did Nevada's anti-strategic litigation against public participation (“anti-SLAPP”) statute, Nev.Rev.Stat. §§ 41.635–41.670, as that statute was in effect prior to the most recent amendments in 2013, cover speech that seeks to influence an election but that is not addressed to a government agency? Because the issues are important, and the answers are unclear and may be determinative of the instant appeal, we reserve decision and certify these questions to the Nevada Supreme Court.
At the time appellees posted the petition, Adelson and LVSC had filed no reply in the Nevada litigation. By the time a reply denying Adelson's alleged approval of any prostitution strategy was filed, appellees had already removed the petition from the NJDC website.
In August 2012 Adelson brought suit in the Southern District of New York, although neither he nor appellees are domiciled in New York. He is a citizen of Nevada. Two appellees, NJDC and Harris, are citizens of the District of Columbia. The third, Stanley, is a citizen of Texas.
Appellees timely moved to dismiss pursuant to Rule 12(b)(6) and the District of Columbia's anti-SLAPP statute. In their papers supporting this motion, appellees noted the existence of similar statutes in New York, Nevada, and Texas, and indicated their likely intent to move for dismissal under the law of one of these other jurisdictions should the court determine that such law, rather than the District of Columbia's, applied.
In March 2013 the district court indicated its inclination to apply Nevada law and requested that the parties brief the application of the Nevada anti-SLAPP statute. Appellees then moved to dismiss under that statute, and Adelson moved for limited discovery on appellees' knowledge of falsity in order to oppose the motion. In its decision dismissing Adelson's suit under Rule 12(b)(6) and the Nevada statute, the district court extended nunc pro tunc the statutory time to file a Nevada anti- SLAPP motion, denied Adelson's motion for discovery, and awarded costs and fees as provided for by the Nevada statute.
We review de novo the district court's dismissal under Rule 12(b)(6), accepting all factual allegations in the complaint as true and drawing all reasonable inferences in Adelson's favor. McGugan v. Aldana–Bernier, 752 F.3d 224, 229 n. 2 (2d Cir.2014). We likewise review de novo all issues determined as a matter of law in connection with the district court's dismissal under the Nevada anti-SLAPP statute. Chandok v. Klessig, 632 F.3d 803, 812, 818–19 (2d Cir.2011); Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir.2006). The district court's finding of good cause to extend the time to file an anti-SLAPP motion is reviewed for abuse of discretion, see Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir.2012), as is the district court's decision to deny Adelson's request for discovery, Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
In our review of the Rule 12(b)(6) dismissal, a first question is whether Nevada law would deem appellees' petition not to be defamatory as a matter of law even in the absence of an applicable privilege. Having invited further briefing on this issue by the parties, we conclude that we cannot readily say that. While appellees' petition contained political speech that plainly falls under the protection of the First Amendment, it arguably went beyond such speech when it repeated factual allegations made by Jacobs in the course of his suit in Nevada. Absent an applicable privilege, then, a constitutional question may well arise as to whether First Amendment protection for political speech extends to the republication before us.
To be clear, we agree with the district court that, in a partisan petition like this, appellees' characterization of Adelson's money as “dirty” and “tainted” is the sort of rhetorical hyperbole and unfalsifiable opinion protected by the First Amendment. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144, 150 (2d Cir.2000). Moreover, where, as here, the grounds of the opinion expressed by the speaker are fully disclosed, the opinion itself is normally held not to be actionable even under state defamation law. See, e.g., Lubin v. Kunin, 117 Nev. 107, 113, 17 P.3d 422 (2001); Restatement (Second) of Torts § 566 ().
In contrast, the statement that Adelson reportedly approved of prostitution asserts reasonably specific facts, republication of which may potentially be defamatory if unprivileged. See Flowers v. Carville, 310 F.3d 1118, 1128–29 (9th Cir.2002). Whether a finding of liability could be made despite the constitutional protections outlined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny is a question we leave to another day.
Indeed, because we are loath to decide a constitutional question in advance of the necessity of doing so, Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944) (), and because a determination under Nevada law that appellees' republication is defamatory absent some privilege may require us to decide the constitutionality of liability under these circumstances, we do not decide the prior question of whether, apart from the privilege discussed below, the publication violates Nevada defamation law, nor do we expressly certify this question.
To avoid a possibly unnecessary First Amendment decision, we turn instead to Nevada's common law fair report privilege, see, e.g., Lubin, 117 Nev. at 114–15, 17 P.3d 422; Sahara Gaming Corp. v. Culinary Workers Union Local 226, 115 Nev. 212, 215–19, 984 P.2d 164 (1999), asking whether we can apply it to the republished allegations, as appellees urge us to do, and as the district court did. Here, however, we find a question not yet answered by Nevada law, nor sufficiently clearly answered by the law of any other state: Does a hyperlink to source material about judicial proceedings suffice to qualify as a report for purposes of applying the privilege? Cf. Dameron v. Washington Magazine, Inc., 779 F.2d 736, 739 (D.C.Cir.1985) ().
Adelson argues that the inclusion of some other form of attribution, such as a footnote or a web address, was required for appellees to be able to invoke the privilege. Appellees contend that no further attribution is necessary where, as in the present case, the communication occurred online, and the hyperlinks were not hidden but visible in the customary manner, that is, by being embedded in blue, underlined text. The issue is ultimately one of state law on which no state's highest court has spoken,2 and the question not only may be determinative of the instant appeal but is also of recurring importance in the area of internet defamation more generally. We, therefore, certify the question. We note that Nevada permits certification where an issue of state law “ may be determinative,” Nev. R.App. P. 5(a) (emphasis added), and that such an approach permits us to certify without, at this point, reaching the underlying constitutional question.3
Nevada's anti-SLAPP statute immunizes specific types of communication from civil liability and, hence, may be a separate basis on which dismissal was proper. The application of that statute to this case, however, raises three distinct issues, one of which we find sufficiently uncertain to warrant certification.
First, there is the question of whether Nevada's anti-SLAPP provisions apply in federal proceedings under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Many courts have held that these statutes, including the one here, are to be applied federally in such circumstances. See, e.g., Godin v. Schencks, 629 F.3d 79, 91–92 (1st Cir.2010); Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 168–69 (5th Cir.2009); U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972–73 (9th Cir.1999); cf. Makaeff v. Trump Univ., LLC, 715 F.3d 254, 276 (9th Cir.2013) (Paez, J., concurring) (). The question is one of federal, not state, law. See Liberty...
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