Pope v. Fellhauer, No. 74428 (Nev. March 21, 2019) (unpublished).
In the last 3 years, the Nevada Supreme Court issued multiple decisions related to Nevada’s anti-SLAPP law and how the law should be applied in specific cases. SLAPP is a term that stands for “Strategic Lawsuit Against Public Participation.” The term denotes “a meritless lawsuit that a plaintiff initiates to chill a defendant’s freedom of speech and right to petition under the First Amendment.”
As the Nevada Supreme Court explained: “The hallmark of a SLAPP lawsuit is that it is filed to obtain a financial advantage over one’s adversary by increasing litigation costs until the adversary’s case is weakened or abandoned.” Under Nevada’s ant-SLAPP statute, if a defendant believes a lawsuit against him is a SLAPP, he may file a motion to dismiss the case:
1. If an action is brought against a person 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:
(a) The person against whom the action is brought may file a special motion to dismiss; and
(b) The Attorney General or the chief legal officer or attorney of a political subdivision of this State may defend or otherwise support the person against whom the action is brought… See NRS 41.660.
Nevada’s anti-SLAPP statute is in line with Nevada’s long-held “absolute privilege for defamatory statements made during the course of judicial and quasi-judicial proceedings.” See Shapiro v. Welt, 133 Nev. 35, 37, 389 P.3d 262, 268 (2017). This privilege bars an individual from suing a witness or party in a lawsuit who makes a defamatory statement, “because the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.” Id.
Pope v. Fellhauer is a case that involved a dispute between three cul-de-sac neighbors. Trevor Pope moved in next to Sharon and James Fellhauer. Mr. Pope and Fellhauers did not get along and had multiple verbal altercations. Some of Mr. Pope’s guests also got involved in these heated arguments with the Fellhauers. Mr. Pope began making statements about the Fellhauers on social media sites, such as Twitter and Altert-ID. Altert-ID is a “neighborhood crime-reporting website.” Eventually, Mr. Pope and one of his guests posted a string of statements about the Fellhauers, suggesting they were dangerous, sick, mentally unstable, they were the reason behind the neighborhood being labeled a “crime zone,” and asserting the Fellhauers recorded a naked 1-year old swimming in Mr. Pope’s pool.
At this point, the Fellhauers had their attorney send a letter, demanding Mr. Pope retract the allegations, issue a public apology, and pay damages. Mr. Pope never responded to the demand so the Fellhauers filed a defamation lawsuit. In response, Mr. Pope filed an anti-SLAPP motion to dismiss, arguing his speech was protected by the First Amendment because it concerned a matter of public importance, the safety of the neighborhood. However, the district court was not persuaded by Mr. Pope’s argument and denied the motion to dismiss.
Mr. Pope appealed to the Nevada Supreme Court, which resulted in the case being remanded to the district court (without deciding the merits of the case) for further proceedings based on the Court’s guidance on how to apply Nevada’s anti-SLAPP statute. Yet, the district court again denied Mr. Pope’s anti-SLAPP motion to dismiss, so Mr. Pope again appealed with Mr. Pope continuing to assert his statements about the Fellhauers were protected speech.
Similarly, the Nevada Supreme Court denied Mr. Pope’s second appeal. The Court ruled his speech did not satisfy the three-factor criteria to show his actions were “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,” which the anti-SLAPP statute requires. The three factor test provides that communications are protected speech that: “(1) Relate to an issue of public interest, (2) are made in a public forum, and (3) are either true or made without knowledge of their falsity.”
In Mr. Pope’s case, the key issue was whether his speech was of public interest or concern. Nevada’s anti-SLAPP statute does not define “public interest” or “public concern” so the Court adopted the reasoning outlined by California:
(1) public interest does not equate with mere curiosity;
(2) a matter of public interest should be something of concern to a substantial number of people; a matter of concern to a speaker and a relatively small specific audience is not a matter of public interest;
(3) there should be some degree of closeness between the challenged statements and the asserted public interest—the assertion of a broad and amorphous public interest is not sufficient;
(4) the focus of the speaker’s conduct should be the public interest rather than a mere effort to gather ammunition for another round of private controversy; and
(5) a person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people. See Piping Rock Partners, Inc. v. David Lerner Assocs., Inc., 946 F. Supp. 2d 957, 968 (N.D. Cal. 2013).
Applying these public concern factors, the Court determined that Mr. Pope was simply making public his private feud with the Fellhausers. The Court held Mr. Pope failed to show a sufficient nexus between his allegations that the Fellhausers were abusive and engaged in potentially illegal behavior and his claim that he was warning the public/his other neighbors. The Court found it significant that Mr. Pope engaged in name-calling: “it is unclear how calling the Fellhauers “ ‘weird,’ ‘wack-jobs,’ ‘EXTREMELY MENTALLY UNSTABLE,’ ‘crazy,’ and ‘sick” conveyed anything other than ‘a single [person being] upset with the status quo.’… Thus, we cannot conclude that the derogatory remarks about his neighbors were directly related to an issue of public concern.” Therefore, Mr Pope’s statements were not protected speech subject to an anti-SLAPP motion to dismiss.
The Nevada Supreme Court was unanimous in its Pope v. Fellhauser decision. This is significant because it shows a clear boundary of when Nevada courts will view certain speech as not protected and not subject to anti-SLAPP dismissal. Individuals cannot hide behind anti-SLAPP laws when they engage in public mud-slinging, name-calling, or unfounded allegations of a criminal nature. Furthermore, the five factors for determining when Nevada courts will consider speech a matter of public concern will assist attorneys and insurance carriers in evaluating claims and preparing defenses.