You have an unsatisfying meal at a restaurant where you believe you saw canned ingredients being used. Do you have the right to publicly write about your experience?

Dozens of people tell you that one of the most successful businessmen in Nevada — a man whose name graces several local landmarks and who served as the vice chairman of the president’s inauguration committee — has allegedly been sexually pressuring his employees for decades. As you investigate the allegations, you find police reports from the 1970s backing up the allegations. Do you have the right to report about those allegations?

What if you get a detail — any detail at all, no matter how minor — wrong? 

What if the person or business you wrote about merely has a bigger bank account than you do? Even if everything you wrote was the absolute truth and you have the evidence to prove it, how long can you afford to pay a lawyer to defend you in court?

Neither of the situations described above are hypothetical. That unsatisfying meal was the subject of Pegasus v. Reno Newspapers, Inc, a Nevada Supreme Court case in which a local food critic complained about a meal she had at a Mexican restaurant in Sparks and was sued by the restaurant owner. The businessman, meanwhile, is none other than Steve Wynn, who recently appealed a failed defamation case against The Associated Press (AP) to the U.S. Supreme Court and is seeking to overturn New York Times Company v. Sullivan.

Since Sullivan was decided more than 60 years ago, Americans have enjoyed a stronger constitutional right to openly and robustly debate the actions of government and public officials. Like all rights, the right to speak or write about someone has never been absolute. If you make something up out of whole cloth about someone, the person you’re lying about has the right to sue you for defamation. 

The justices who ruled in Sullivan, however, recognized that our freedom of expression is guaranteed in the Constitution so that Americans can openly and robustly debate about matters of public concern. They further recognized that, when Americans comment about matters of public concern, such commentary “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Thus, to protect the ability of ordinary Americans to comment on such matters, Sullivan requires those whose activities are a matter of public concern to not only prove that a commentator is factually inaccurate about a specific claim to win a defamation lawsuit — they must also prove that the factual inaccuracy was told with “actual malice.” 

In other words, to prevail in court, it’s not enough to prove you’re wrong — it’s also necessary to prove you either knew you were wrong or recklessly disregarded the possibility you might not be telling the truth.

To understand the importance of Sullivan, consider recent coverage comparing the safety of the Tesla Cybertruck to the Ford Pinto, a compact car that had a notorious susceptibility to fire in moderate-speed rear end collisions. According to a recent report, the Cybertruck may be 17 times more likely to kill an occupant in a fire than the Ford Pinto was between 1971 and 1980.

As the authors of the report themselves admit, the number of reported fire fatalities involving Cybertrucks includes the recent intentional explosion of a Cybertruck outside of Trump’s Las Vegas hotel — an incident that can’t credibly be blamed on the inherent safety of a Cybertruck. Additionally, the number of Ford Pinto fire fatalities may be higher than those recorded by the National Highway Traffic Safety Administration. Consequently, the exact ratio of Cybertruck and Pinto fire fatalities may not match the one published in the report.

Since Cybertrucks are sold to the public, and since the safety of vehicles on public roads is a matter of public concern, the authors of the report merely need to do their best to tell the truth under the Sullivan standard. This is as it should be, since the real issue isn’t whether Cybertrucks are 17 times or 4 times more likely to kill than Pintos — it’s that, in the truck’s 15-month production run, which only produced approximately 35,000 trucks, at least four occupants have already died in fires.

Without the standard established in Sullivan, however, Tesla could sue the author of the report for defamation if the Cybertruck proves to be only 16 times more deadly than a Ford Pinto. Alternatively, Tesla could merely threaten to sue the publisher of the report for defamation — unless the publisher “voluntarily” retracts the report. 

Either result would cost the public the ability to effectively discuss and debate the relative safety of the Cybertruck.

Most crucially, one of the most important laws protecting the rights of Nevadans is the state’s anti-SLAPP law — “SLAPP” meaning “Strategic Lawsuits Against Public Participation.” Originally passed in 1997, then subsequently amended in 2013 and 2015, the law compels plaintiffs who file frivolous defamation claims to pay all attorney’s fees and provide additional monetary relief to defendants if they lack sufficient evidence to even have a chance of winning the suit. According to the Institute for Free Speech, Nevada’s anti-SLAPP law ensures our speech protections are among the strongest in the country.

Putting the state’s anti-SLAPP law and Sullivan together, any government official or prominent public figure who charges a Nevadan with defamation must be ready to provide evidence — any evidence at all — that the person they’re charging intentionally or recklessly defamed them. If they don’t have any evidence to provide, the case is swiftly dismissed and the public figure has to pay all attorney fees.

To see Nevada’s anti-SLAPP law and Sullivan in action, consider Wynn’s case against the AP — only the most recent example of Wynn trying and failing to sue those who speak out publicly against him.

Wynn’s case against the AP was dismissed under the state’s anti-SLAPP law because, in two separate rulings, the Nevada Supreme Court recognized that Wynn did not have any evidence that the AP acted maliciously or recklessly. The AP published the contents of a pair of police reports that alleged sexual misconduct by Wynn, of which one was later found to have a series of inconsistencies. Given the information the AP had at the time of publication, however — the identities of the women who filed the reports was originally redacted — it was impossible for the AP to realize until after publication that one of the reports was from a potentially unreliable source.

As in our previous Cybertruck example, this outcome is as it should be. The fundamental issue, as far as the public is concerned, isn’t that one of the two allegations of sexual misconduct presented in a single news story may have been in error. The germane issue is that the other allegation may still stand — along with the dozens of other allegations reported on by the Wall Street Journal and the Las Vegas Review-Journal. Without Nevada’s anti-SLAPP law or the standard of evidence established in Sullivan, however, Wynn and others like him can discourage anyone from reporting on public misconduct, lest they face a ruinously expensive and time consuming defamation lawsuit.

Or take the case of the Mexican restaurant mentioned at the beginning. The food critic alleged that she saw the restaurant use canned beans to prepare their meal. The restaurant, on the other hand, argued that it never uses canned beans — well, except in emergencies — and there was no way the critic could have possibly seen which beans were used to prepare her meal.

Nevada’s anti-SLAPP law, in conjunction with the standard established by Sullivan, protected the right of the food critic to express an opinion about a meal prepared at a publicly accessible restaurant. If you’ve ever had a bad meal and felt the need to vent about it online, you can thank Sullivan and our state’s anti-SLAPP law for keeping you out of court.

As an aside, while attorney general and Democratic gubernatorial candidate Aaron Ford served in the state Senate, he worked with his colleagues in 2013 to co-sponsor an amendment that strengthened the state’s anti-SLAPP law. Unfortunately, he also served on the committee in 2015 that initially attempted to gut the state’s anti-SLAPP law at the direction of Wynn’s legal team — an effort that was ultimately stopped by the Assembly following significant public outcry despite the Senate voting unanimously in favor of Wynn’s effort.

Ford now has a chance to show Nevadans which side of the issue he truly stands on — or, at least, demonstrate he learned something between 2015 and today. That’s why I eagerly await Ford’s amicus curiae — a “friend of the court” briefing supporting or opposing a given legal position — in response to Wynn’s U.S. Supreme Court case. Nevada needs a strong advocate to fight for our constitutional rights. This is an opportunity for him to demonstrate his support for our rights in 2013 wasn’t a fluke — and a chance for him to make amends for what happened in 2015. 

David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a recurring opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky @davidcolborne.bsky.social, on Threads @davidcolbornenv or email him at [email protected].