Attorneys for perennial Republican candidate Danny Tarkanian and U.S. Sen. Jacky Rosen sparred before the Nevada Supreme Court in 30 minutes of oral arguments Monday over an unresolved defamation lawsuit.

The lawsuit, filed by Tarkanian a week after narrowly losing the 2016 election for the state’s 3rd Congressional District to Rosen, seeks more than $8 million in damages from Rosen through allegations that her campaign committed libel by claiming in ads run on TV and social media the businessman and son of legendary UNLV basketball coach Jerry Tarkanian set up a number of fake charities to front a telemarketing scheme that defrauded seniors.

Justices questioned attorneys Marc Randazza for Tarkanian and Marc Elias for Rosen on a motion filed by the Democratic senator to dismiss the suit under a section of state law allowing for expedited dismissal of long-shot defamation suits — meaning that even if Tarkanian prevails, he’ll need to still win a separate libel case against Rosen.

Called an anti-Strategic Lawsuit Against Public Participation or anti-SLAPP motion, the law — based upon a similar law from California — is meant to defend the free speech of individuals who may become the target of censorship by long, costly and ultimately doomed litigation.

District Court Judge Jerry Wiese had denied that motion in 2017, ruling the Rosen campaign’s statements did not meet the “good faith” requirement of the statute and that Tarkanian had shown enough initial evidence to show some likelihood of success in his defamation suit.

“At the very least,” Wiese wrote in his court order, “the court cannot find, as a matter of law that Plaintiff cannot make out a case for defamation regarding the statements made by Defendants.”

During Monday’s oral arguments, Elias said the specific claims at issue — that Tarkanian had set up fake charities — were ultimately true, even if the gist or implication of those claims could be construed as false.

“I have a shocking admission to the court today: political ads don't always tell the whole story,” Elias said. “Indeed, sometimes they are slanted, sometimes they are hyperbolic, in fact they are almost always slanted and hyperbolic. And what the courts have said over and over again is that remedy for Mr. Tarkanian and other is to combat it with more speech.”

Elias later argued that denying Rosen’s anti-SLAPP motion would open the proverbial floodgates, allowing all political speech — or at least speech made by political campaigns — subject to defamation lawsuits. He also turned to statements made by former campaigns for Ross Miller and Steven Horsford — both former Tarkanian opponents — that were similar to Rosen’s statements and, he argued, confirmed as true by Tarkanian himself.

Neither the Miller nor Horsford claims were ever taken to court, though a jury did find older assertions made by former state Sen. Mike Schneider in 2004 were defamatory and in 2009 awarded Tarkanian $150,000 in damages.

Tarkanian, who practiced civil law through the mid-1990s and appeared in court on Monday, had acknowledged a role in setting up those companies but also that he had no hand in their regular operation, nor did he know of any illegal activity at the time.

“When you're doing legal work, you don't go and check on someone's day-to-day business," he told the Las Vegas Sun in 2006. “You sit in your office, you write up the documents that you do as an attorney, and that's all your involvement.”

In his rebuttal to the court, Randazza argued that shifts in the anti-SLAPP law have never changed the definition of defamation, and that the context of the statements at issue — even if they were technically true — would not rule out that “gist or sting” of the full statements.

In short, even if the statements from Rosen were “quite similar” to statements from Miller and Horsford, “quite similar are not the same.”

“What my client said is he admitted, yes, that he worked as an attorney for these companies,” Randazza said. “That's very different from saying these statements, in the Horsford case, are true, entirely, in context, and then that those statements translate over to her statements in this ad.”

In drawing a line between the statements of other Tarkanian opponents and statements made by Rosen, Randazza also argued that the senator’s camp had never argued that they relied on Horsford or Miller, and that therefore the argument was moot.

Newly elected Justices Elissa Cadish — a close friend of Rosen — and Abbi Silver did not participate in the case, while Justice Lidia Stiglich watched the arguments remotely. And though just five of the seven justices are participating, the court will still need a majority of four justices to render a decision. In the case that there is no majority, additional justices, be they senior justices or district judges, will be appointed to make a ruling.

Should the high court uphold the District Court’s denial of the anti-SLAPP motion, Tarkanian will still have to prove libel, slander and intentional infliction of emotional distress to a jury — a historically difficult task.

Because Tarkanian is defined by the courts as a public figure, he would have to prove that Rosen made the claim — even if it was false — with “actual malice.” In other words, he would have to prove that Rosen, her campaign or the Democratic Congressional Campaign Committee — all defendants in the case — acted “with reckless disregard for the truth,” i.e. they knew what they were saying was false, or that they acted with “reckless disregard of whether it was false or not,” a standard established in the landmark New York Times v. Sullivan. 

A decision from the Supreme Court on the anti-SLAPP motion will be decided in the coming weeks or months.