Perennial Republican candidate Danny Tarkanian will not be allowed to proceed with a libel case against his 2016 opponent, now-Sen. Jacky Rosen, after a three-year court battle that ended with the state Supreme Court order dismissing the case.
The order issued Thursday by the Nevada Supreme Court reverses a Clark County District Court’s decision and ends the possibility that Tarkanian, the son of legendary UNLV basketball coach Jerry Tarkanian, could again win damages from a political opponent over ads accusing him of setting up “13 fake charities that preyed on vulnerable seniors.”
The case decided by the Supreme Court was not over whether Rosen’s 2016 congressional campaign committed libel or defamation against Tarkanian, but instead was over a motion filed by attorneys for Rosen to preliminarily dismiss the lawsuit through the state’s anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) laws — designed to defend free speech that may be the target of censorship by long and costly litigation.
In the order, which was authored by Justice James Hardesty, the court found that the language in the advertisements produced by Rosen’s campaign had the ‘gist or sting’ of truthfulness, and that Tarkanian’s issue with her ad accusing him of “setting up” the fraudulent charities were “substantially true.”
“Under this standard, it is clear from the evidence in the record that Rosen sufficiently demonstrated that the statements were made in "good faith" under the anti-SLAPP statute because the "gist or sting of the statements was substantively true,” Hardesty wrote in the order.
The court also found that Tarkanian was unlikely to prove actual malice — acting with a reckless disregard for the truth, a standard established by the landmark New York Times v. Sullivan case — in order to prevail in any defamation lawsuit, given his status as a public figure.
“Even if there is a material difference between stating that Tarkanian ‘set up’ the fraudulent telemarketing corporations and stating that he ‘worked for those corporations,’ Tarkanian cannot prove that Rosen made her statements with reckless disregard for their truth,” the order stated.
Tarkanian launched the lawsuit after the election in November 2016, accusing Rosen’s campaign of disseminating political advertising that contained false and defamatory statements about Tarkanian’s legal work for telemarketing companies later found to be fraudulent. Tarkanian has acknowledged his role in setting up the companies but said he did not know of their operations or any illegal activity.
Similar accusations around his work with those companies have dogged Tarkanian’s repeated political bids, though he successfully sued and won $150,000 in damages from then-state Sen. Mike Schneider for using the claims in their 2004 race.
Tarkanian lost the 2016 race for the state’s 3rd Congressional District by fewer than 5,000 votes, and lost another bid for the seat in 2018 to Democrat Susie Lee by a wider margin — nearly 26,000 votes. Tarkanian also ran unsuccessfully for state Senate in 2004, for secretary of state in 2006, for a U.S. Senate seat in 2010 and for the state’s Fourth Congressional District in 2012.
In oral arguments from March, attorneys for Rosen acknowledged that even though political ads could be “slanted and hyperbolic,” the remedy was not in defamation or libel lawsuits but in “more speech.” Marc Elias, a prominent attorney for Democrats nationwide, told the court that denying the anti-SLAPP motion would open the floodgates by allowing much more political speech to be subjected to lawsuits.
A dissenting opinion, authored by Justices Mark Gibbons and Kristina Pickering, took issue with the fact that Rosen herself did not submit an affidavit stating she believed the claims in the ads were true, and said that the court discounted Tarkanian’s past success in a defamation lawsuit on the same topic in assessing his chances to prevail.
“Without a supporting affidavit, Rosen failed to demonstrate by a preponderance of the evidence that she made the statements in good faith,” the dissent states. “Even if she had met her burden, considering Tarkanian's evidence in a light most favorable to him, he made a prima facie showing of his claims.”
Two members of the court — Justices Elissa Cadish and Abbi Silver — voluntarily recused themselves from the case (Cadish because of her friendship with Rosen). They were replaced by Churchill County District Court Judge Thomas Stockard and Washoe County District Court Judge Barry Breslow.