By Marc J. Randazza
Introduction
Strategic Lawsuits Against Public Participation (SLAPP) aim to silence critics through the burden of litigation. Nevada’s Anti-SLAPP Act, NRS 41.635 et seq., provides a shield against such lawsuits, providing substantive immunity from claims targeting protected speech.
Framework and Purpose
Nevada’s Anti-SLAPP law deters weak lawsuits that punish or discourage free expression. The law provides defendants with substantive immunity from meritless lawsuits filed to chill defendants’ First Amendment rights. Shapiro v. Welt, 389 P.3d 262, 267 (Nev. 2017). NRS 41.660 provides that if a lawsuit is filed against a defendant for “good faith”communications about a matter of public concern (which is defined broadly), then the defendant may invoke the Anti-SLAPP law’s protections. See e.g. Smith v. Zilverberg, 481 P.3d 1222, 1227–28 (Nev. 2021) (the public has an interest in a businessman’s behavior because it “inform[ed] the public’s decision on whether to do business with him.”).
Protected Communication
The first prong requires defendants to show the claim arises from protected speech directed at speech or petition rights. NRS 41.637. Nevada courts interpret these categories broadly, and to all possible claims. Panik v. TMM, Inc. clarified that no claim is categorically exempt from Anti-SLAPP protections. 538 P.3d 1149, 1152 (Nev. 2023). The Supreme Court of Nevada held that the law applies to trade libel and abuse of process claims. This focus on the underlying conduct, not the claim’s label, ensures broad First Amendment safeguards. Id.
Public Interest and Public Forum
Nevada courts define “public interest” broadly. In Wynn v. AP, an article about sexual misconduct allegations was connected to the public interest. 555 P.3d 272, 277 (Nev. 2024). Likewise, Abrams v. Sanson held that criticisms of an attorney’s courtroom conduct were an issue of public interest. 136 Nev. 83, 87–88 (2020). And in Williams v. Lazer the Supreme Court of Nevada held that statements to the Nevada Real Estate Division (NRED) that a real estate agent was racist and sexist were protected as petitioning activity. 137 Nev. 437, 440 (2021).
The public forum requirement is similarly flexible. In Kosor v. Olympia, HOA meetings, newsletters, and online platforms like nextdoor.com were public forums because they facilitated civic engagement. 136 Nev. 705, 709–14 (2020). However, Keenan v. Claggett, distinguished private email listservs, as a restricted attorney listserv lacked the accessibility of a public forum. 2024 Nev. LEXIS 396, at *4–5 (2024).
Good Faith
Prong one requires “good faith,” and that term is defined in the statute as true or made without knowledge of its falsity. However, ill-informed lawyers will try to argue that if the statement is allegedly defamatory, it cannot be in good faith. See Daley v. Shields, No. 85144, 2024 LEXIS 163, at *7 (Nev. 2024) (finding that plaintiff providing evidence that defendant’s statements were false did not defeat a defendant’s showing of good faith based on declaration he did not know statements were false). Showing good faith is easy. A defendant’s declaration is sufficient. Lazer v. Williams, 137 Nev. 437, 440-42 (2021). The “good faith” discussion also overlaps with the law of defamation in that a statement of opinion cannot be made with knowing falsity, as an opinion cannot be false.
There is a wrinkle in Nevada law that makes very little sense, and I call on the Supreme Court of Nevada to re-examine it. In Spirtos v. Yemenidjian, the defendant denied making defamatory statements. 137 Nev. 711, 713 (Nev. 2021). The Court then held that since the defendant denied making the statements, he could not show good faith, as he “cannot deny accusing [plaintiff] of corruption in his conversation . . . while simultaneously contending that this (non)accusation was truthful or made without [defendant’s] knowledge of its falsehood.” Id. at 715. The reasoning here is counter to the language and purpose of the statute, if a defendant did not make a statement at all, then it only stands to reason they did not make the statement with knowledge of falsity.
Plaintiff’s Burden and First Amendment Protections
Under prong two, plaintiffs must demonstrate “minimal merit.” Abrams v. Sanson, 136 Nev. 83, 91 (2020). This stage filters out weak claims that chill speech. The plaintiff must make a prima facie showing supporting their claims; simply showing there is a genuine dispute of material fact is not sufficient. Panik v. TMM, Inc., 538 P.3d 1149, 1155–56 (Nev. 2023). Courts consider defenses like privileges at prong two, reinforcing free speech protections. See Williams v. Lazer, 137 Nev. 437, 443-44 (2021) (discussing statements protected by the litigation privilege).
Fee Awards
NRS 41.670 deters SLAPP suits by imposing financial consequences. In Smith v. Zilverberg, the court ruled that prevailing defendants may recover all fees incurred in defending dismissed claims, not just motion-related costs. 137 Nev. 65, 72–73.
Challenges and Judicial Refinements
Despite its strengths, the Act faces some problems. The Spirtos decision risks weakening protections by allowing vague allegations to survive motions. And in a unique twist to Nevada practice, in contrast with every other state that has an Anti-SLAPP law, state and federal courts in Nevada have allowed plaintiffs to “cut and run” once the defendant files an anti-SLAPP motion. The court in Padda v. Hendrick found that the statute only allows a defendant to recover fees if the motion is granted. Thus, voluntarily dismissing any time prior to an adverse ruling on an Anti-SLAPP motion can evade the law’s consequences. Padda v. Hendrick, No. 78534, 2020 LEXIS 409, at *2 (Nev. 2020).
Danger
Anti-SLAPP motions are similar to summary judgment motions; you need to provide factual support and documentary evidence. This means a defendant can incur a lot of attorneys’ fees by the time a motion is granted. A SLAPP plaintiff could be on the hook for a fee award they are incapable of paying. And a bankruptcy estate will seek funds from whatever sources it can, including by malpractice claims against plaintiff’s attorneys who file an ill-advised SLAPP.
Conclusion
Nevada’s Anti-SLAPP Act offers a robust mechanism to dismiss meritless lawsuits targeting free speech. Cases like Wynn and Smith demonstrate its effectiveness.
About the author
Marc J. Randazza is a First Amendment attorney with offices in Las Vegas, Boston, Miami, Tampa, and Hartford. Randazza Legal Group handles First Amendment matters nationwide.
About the article
This article was originally published in the Communiqué (Aug. 2025), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2025/communique-aug-2025/. The printed magazine will be mailed to CCBA members in the last week of July 2025.
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