It’s hard to keep track with how many elections perennial candidate Danny Tarkanian (R) has lost. He just lost in his fourth attempt to get into Congress last November, yet he’s now making news over his third failed attempt in 2016.
Why’s that? Instead of fighting to win in the court of public opinion, Tarkanian now wants to win in the court of law. You may already know about Tarkanian’s habit of filing lawsuits against the opponents who vanquished him, but it’s just as important to know how he does it and why a generally obscure provision in Nevada state law is now being used against him.
Danny Tarkanian’s unfinished business
Two years before her successful election as Nevada’s newest U.S. Senator, Jacky Rosen (D) won the open seat race for the 3rd Congressional District (NV-03) in November 2016. Though she only won by just under 4,000 votes, she nonetheless joined other successful Nevada Democratic candidates in making the Silver State a bright spot for Team Blue during an otherwise bleak night that was defined by President Donald Trump’s national upset victory.
During her race against Danny Tarkanian, she brought up the same inconvenient truths that his previous opponents used against him: the $17 million judgment that resulted from a failed plan to build a “destination equestrian resort” near San Diego, the six-figure income he earned with a children’s basketball charity, his role in setting up a shady telemarketing business targeting seniors, and the list goes on. After Rosen defeated Tarkanian in their NV-03 race, Tarkanian decided to continue the fight against Rosen filing a defamation suit.
While Tarkanian thus far has failed to win higher office, he has had better luck in court. In particular, he was awarded $150,000 in damages in 2009 after suing then State Senator Mike Schneider (D-Las Vegas) for leveling the telemarketing claim against him when he ran against Schneider in 2004. Considering Tarkanian’s past success in court, we can see why he’s trying it again with Rosen. However, Nevada law has changed since 2009… And ironically enough, one of the key players there happens to be Danny Tarkanian’s own lawyer.
Quite the SLAPP in the face
I first learned of Marc Randazza during the 2015 legislative session, when he sounded the alarms over SB 444. Nevada first enacted an anti-SLAPP law in 1997, and the Legislature strengthened it in 2013 with SB 286 to curb lawsuits that are specifically designed to silence critics and intimidate whistleblowers. Randazza warned of then Senate Judiciary Committee Chair Greg Brower’s (R-Reno) and other legislators’ cozy relationship with Wynn Resorts, and famed Las Vegas-based journalist John L. Smith reminded legislators and the public of Steve Wynn’s use of SLAPP lawsuits to stifle his reporting on how Wynn became a gaming industry titan (warts and all). SB 444 ultimately passed with hardly any opposition, but only after it was amended to make smaller modifications to the law rather than the major revision that was originally proposed.
Since then, Randazza has continued to speak out in support of free speech and against SLAPP suits. Yet while he and allies succeeded in saving Nevada’s anti-SLAPP laws, that hasn’t stopped other moneyed interests from filing such suits, or even simply threatening to file such suits, to stifle free speech. Just two months ago, former Las Vegas Review-Journal reporter Jennifer Robison revealed that her attempt to publish an exposé on her former paper’s record on sexual harassment and workplace discrimination in The Nevada Independent was scuttled due to R-J affiliated lawyers’ threat to sue them over it. While Robison ultimately got it published anyway, she succeeded thanks to Columbia Journalism Review having far more resources to fend off such SLAPP suits meant to prevent journalists from doing their job.
So why am I scratching my head now? Here goes: Marc Randazza represents Danny Tarkanian in his lawsuit against now U.S. Senator Jacky Rosen (D). And it’s Rosen’s lawyer, Marc Elias, who’s currently citing Nevada’s anti-SLAPP law in requesting the Nevada Supreme Court overturn a 2017 district court ruling that allowed Tarkanian’s suit to proceed.
Why does any of this really matter?
It’s often been said that America runs on a system of “checks and balances”. In this light, we can better understand the utility of anti-SLAPP laws as a check to balance the First Amendment’s protection of free speech with federal and state libel laws’ intent to protect people from unwarranted defamation of character.
After all, we’ve seen various other recent attempts to use our legal system to silence free speech: Elizabeth Holmes and her lawyer David Boies repeatedly threatened litigation and ran up whistleblowers’ legal bills to try to stop the revelation of the sketchy science behind Theranos’ lofty claims of medical revolution. Peter Thiel, Hulk Hogan, and their superstar team of top-notch lawyers succeeded in taking down Gawker Media because its original gossip site, Gawker, published stories about them that they didn’t like. And of course, President Donald Trump has continually threatened to pursue stronger libel laws that would essentially undermine the First Amendment by opening the floodgates for lawsuits designed to silence free speech.
This week, Supreme Court Justice Clarence Thomas shocked some legal observers with an opinion endorsing the overturning of the 1964 New York Times v. Sullivan Supreme Court decision that currently limits SLAPP-style activity in federal courts. Thanks to his colleagues’ record of supporting the New York Times v. Sullivan precedent, Thomas probably won’t succeed in overturning it any time soon. But thanks to Danny Tarkanian and his lawyer’s Freaky Friday-esque situation involving the law he himself so stridently defended four years ago, the Nevada Supreme Court will eventually have to decide how far Nevada law can go to protect free speech from the well-heeled special interests who seek to squelch it.