Wynn v. Associated Press

• Decision Date: 29 October 2020
• Docket Number: No. 77708,77708
• Citation: 475 P.3d 44
• Parties: Steve WYNN, an Individual, Appellant, v. The ASSOCIATED PRESS, a Foreign Corporation; and Regina Garcia Cano, an Individual, Respondents.
• Court: Nevada Supreme Court

475 P.3d 44

Steve WYNN, an Individual, Appellant,

v.The ASSOCIATED PRESS, a Foreign Corporation; and Regina Garcia Cano, an Individual, Respondents.

No. 77708

Supreme Court of Nevada.

FILED OCTOBER 29, 2020

Pisanelli Bice, PLLC, and Todd L. Bice, Las Vegas; Peterson Baker, PLLC, and Tamara Beatty Peterson and Nikki L. Baker, Las Vegas, for Appellant.

Ballard Spahr LLP and Chad R. Bowman and Jay Ward Brown, Washington, D.C.; Ballard Spahr LLP and Joel E. Tasca, Las Vegas, for Respondents.

BEFORE THE COURT EN BANC.

OPINION

By the Court, CADISH, J.:

This appeal arises out of a defamation claim brought by appellant Steve Wynn against respondents The Associated Press and one of its reporters. Respondents published a news article reporting on a 2018 citizen's complaint to the police in which the complainant alleged Wynn sexually assaulted her in 1973 or 1974. For statute of limitations reasons, police did not investigate the allegations and took no further law enforcement action. Wynn's defamation claim alleged that the complainant's accusations were false and that respondents published the article reporting on them with malice. The district court granted respondents’ motion to dismiss, concluding that the fair report privilege applied as a defense, thereby shielding respondents from defamation liability.

In resolving Wynn's appeal, we must consider what qualifies as an official action or proceeding warranting application of the fair report privilege to one who reports on it. The fair report privilege shields a defendant from liability for publication of defamatory content in the course of reporting on official actions, official proceedings, or meetings open to the public regarding issues of public concern so long as it is a fair and accurate summary thereof. Here, the district court agreed with respondents that the fair report privilege protected respondents from defamation liability because their article reported on a public record, namely documentation of a citizen's complaint to the police alleging a crime occurred. We disagree that this citizen's complaint constitutes an official action or proceeding as contemplated by the fair report privilege. To hold that a law enforcement officer's mere transcription of a complainant's allegations, absent any additional official action or proceeding, warrants application of the fair report privilege would be inconsistent with the underlying policies behind the privilege and would unnecessarily impinge on our defamation laws. Therefore, we hold that a news article reporting on the contents of a citizen's complaint to the police—which was neither investigated nor evaluated by the police—is not a report of an official action or proceeding for which the fair report privilege provides an absolute defense. Accordingly, we reverse the district court's dismissal and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

In February 2018, the Las Vegas Metropolitan Police Department (LVMPD) held a press conference informing the public that two women filed complaints alleging that Wynn sexually assaulted them. The Las Vegas Review-Journal published an article summarizing the press conference. After reading the article, respondent Regina Garcia Cano, a reporter for respondent The Associated Press (collectively AP Respondents) contacted the LVMPD to inquire about the complaints. The LVMPD sent a copy of an officially released email in response, stating two women alleged that Wynn sexually assaulted them in the 1970s. The email stated that one woman alleged that Wynn sexually assaulted her in Las Vegas, and the other woman alleged that Wynn sexually assaulted her in Chicago, Illinois, Finally, the email stated that the LVMPD would forward a copy of the Chicago allegations to Chicago law enforcement but would not investigate either allegation because the 20-year limitation period on criminal actions for sexual assault had expired.

Under the Nevada Public Records Act (NPRA), Garcia Cano requested copies of the citizens’ complaints. The LVMPD provided copies of the complaints, both of which were partially redacted to exclude identifying information about the complainants. Garcia Cano prepared an article about the allegations contained therein. The article stated that one of the citizens’ complaints was by a woman who told officers that Wynn sexually assaulted her at least three times in her Chicago apartment between 1973 and 1974. The article further stated that the woman reported she became pregnant because of the alleged sexual assaults and gave birth in a gas station restroom. Finally, the article stated that the woman and her child now reside in Las Vegas. The Associated Press published the article.

Wynn filed a defamation complaint against AP Respondents, arguing that the Chicago allegations were false and improbable on their face, and that AP Respondents intentionally described the contents of the underlying report in an incomplete and unfair manner. AP Respondents moved for dismissal, arguing that the fair report privilege provided absolute immunity against Wynn's defamation claim because the article fairly reported the allegations contained in an official police report. Alternatively, AP Respondents argued for dismissal under Nevada's anti-SLAPP statute. In this regard, AP Respondents first contended that the article was a good-faith communication in furtherance of the right to free speech in direct connection with an issue of public concern. Second, they asserted that Wynn, as a public figure, could not meet his burden to establish a probability of prevailing on his defamation claim.

The parties stipulated to a bifurcated argument schedule to avoid unnecessary discovery. First, after briefing of the issue, the district court would determine whether the fair report privilege applied to the article. If the privilege did not apply, then there would be further proceedings to consider the application of the anti-SLAPP statute. After reviewing briefs on the application of the fair report privilege and hearing argument by the parties, the district court concluded that the privilege applied to the article. Therefore, the district court dismissed Wynn's defamation complaint.¹ Wynn appeals, arguing that the district court erred by concluding that the fair report privilege applied to the article.

DISCUSSION

When the district court considers matters outside the pleadings in resolving a motion to dismiss, it effectively treats the motion as one for summary judgment and must apply the summary judgment standard.² NRCP 12(d) ; Mendenhall v. Tassinari, 133 Nev. 614, 617, 403 P.3d 364, 368 (2017). We review a district court's decision to grant summary judgment de novo. Sahara Gaming Corp. v. Culinary Workers Union Local 266 , 115 Nev. 212, 214, 984 P.2d 164, 165 (1999).

The fair report privilege

The issue before this court is whether an article reporting on a citizen's complaint to law enforcement that did not trigger an investigation or further police action constitutes a report of an official action or proceeding that is protected by the fair report privilege. Under the fair report privilege, "[t]he publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported." Restatement (Second) of Torts § 611 (Am. Law Inst. 1977). The privilege is an exception to the general rule that "one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it." Restatement (Second) of Torts § 578 ; see Wynn v. Smith, 117 Nev. 6, 15, 16 P.3d 424, 430 (2001).

We have recognized the fair report privilege since at least 1880. See Thompson v. Powning, 15 Nev. 195, 203 (1880) (holding that the publication of a "fair, full, and true report of judicial proceedings, except upon actual proof or [sic] malice in making the report" is privileged "unless the proceedings are of an immoral, blasphemous, or indecent character, or accompanied with defamatory observations or comments"). Although the fair report privilege originally applied only to reports of statements made during judicial proceedings, courts, including our own, over time have expanded its scope to encompass reports about a variety of official actions beyond judicial proceedings.³ Our expansion of the fair report privilege is consistent with the privilege's underlying policy. Specifically,

[t]he fair report privilege is premised on the theory that members of the public have a manifest interest in observing and being made aware of public proceedings and actions. Access to information concerning the conduct of public representatives is critical to the citizenry's supervision and evaluation of actions taken on its behalf. Obviously unable to monitor all official acts in person, citizens rely on third party accounts of such actions. If accurate reports of official actions were subject to defamation actions, reporters would be wrongly discouraged from publishing accounts of public proceedings.

Wynn , 117 Nev. at 14, 16 P.3d at 429 (emphases added).

Although those policy considerations favor applying the fair report privilege to reports of official actions and statements beyond judicial proceedings, we are mindful that the privilege's scope remains limited by competing societal interests. We recognized such a limitation in declining or confidential investigatory reports by law enforcement that were generally unavailable to the public, because applying it to such reports would "conflict with the protections provided by our libel laws" and could facilitate "the spread of common innuendo." Id. at 16, 16 P.3d at 430. Thus, while courts recognize that enabling the press to "report freely on public affairs ‘requires that we protect some falsehood in order to protect speech that matters,’ " they also...