In an opinion and order issued yesterday, a Nevada state court dismissed with prejudice a defamation claim brought by businessman Steve Wynn against the Associated Press (AP) and one of its reporters. The court held that the challenged news report was absolutely privileged as a fair and accurate summary of a publicly available police case report reflecting a woman's allegation that Mr. Wynn had sexually assaulted her years earlier.

In what appears to be a ruling of first impression in interpreting Nevada's anti-SLAPP statute, the court additionally held that a news report that qualifies as a privileged fair report also constitutes a "good faith communication" for purposes of the statute. The AP is thus entitled to recover attorneys' fees accrued during the course of the case.

After the Las Vegas Metropolitan Police Department (LVMPD) in February released a public statement describing allegations by two women that Mr. Wynn had sexually harassed or assaulted them, AP reporter Regina Garcia Cano filed a public records request. Copies—redacted to protect information that would have identified the two alleged victims—were produced by the LVMPD to Ms. Cano. The AP published Ms. Cano's report summarizing the two records—both of which concerned alleged incidents that happened in the 1970s—and Ms. Cano included the LVMPD's statements that it could not investigate the allegations because of Nevada's 20-year statute of limitations, but that it had passed to Chicago authorities a report concerning the incident alleged to have occurred there. That report included both a description of the alleged assaults and the claim by the alleged victim that she had later given birth to Mr. Wynn's child in unusual circumstances in a gas station restroom—a claim Ms. Cano paraphrased in her article.

Mr. Wynn asserted defamation based only on the portion of the article summarizing the incident that was alleged to have taken place in Chicago, contending that the complainant was "delusional" and that the AP's failure to quote verbatim the description of the alleged childbirth scenario rendered the news article unfair because readers would have found the allegation incredible if they had read the entire police case report.

The AP and its reporter filed a special motion to dismiss under Nevada's anti-SLAPP statute, arguing that Mr. Wynn could not meet his burden to show a probability of prevailing on the merits of his claim both because the news article was an absolutely privileged fair report of the police record in question, and because Mr. Wynn could not prove actual malice as a matter of law.

Nevada's anti-SLAPP statute requires a defendant to demonstrate that a claim "is based upon 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 sec. 41.660(3)(a) A "good faith communication" is defined in Nevada in relevant part as a "[c]ommunication made in direct connection with an issue of public interest in a place open to the public or in a public forum, which is truthful or is made without knowledge of its falsehood." NRS sec. 41.637(4).

Mr. Wynn did not dispute that a published news report about allegations of sexual assault made to police about a public figure satisfies the first prong of that test, but argued that, because the news report was an unfair summary of the police record and purportedly published with actual malice, it was not "truthful."

At the conclusion of oral argument on the motion last week, Clark County District Court Judge Ronald Israel had indicated his intention to grant the AP's motion. In the interval between argument and entry by the court of its opinion, Mr. Wynn submitted a letter to the court arguing that he should be entitled to take discovery regarding alleged actual malice before the court ruled.

Based in part on a stipulation the parties had entered into bifurcating consideration of the fair report and actual malice arguments advanced by the AP—and in part on the fact that the fair report privilege is absolute and cannot be defeated by a showing of actual malice under Nevada law—the court rejected that effort.

Mr. Wynn's lead counsel, L. Lin Wood, said that his client intends to appeal to the Nevada Supreme Court.

Note: The AP and its reporter were represented by Ballard Spahr attorneys Jay Ward Brown and Chad Bowman from the firm's Media & Entertainment Law Group, and by litigators Joel Tasca and Justin Shiroff from the firm's Las Vegas office.

Attorneys in Ballard Spahr's Media and Entertainment Law Group are dedicated to supporting the free press and the First Amendment rights of groups and individuals. The Group helps clients navigate challenging media law issues across all platforms and industries.


Copyright © 2018 by Ballard Spahr LLP.
www.ballardspahr.com
(No claim to original U.S. government material.)

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.

This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.