Wynn v. The Associated Press

140 Nev., Advance Opinion (0
IN THE SUPREME COURT OF THE STATE OF NEVADA

STEVE WYNN, AN INDIVIDUAL, No. 85804
Appellant,
vs.
THE ASSOCIATED PRESS, A
FOREIGN CORPORATION; AND
REGINA GARCIA CANO, AN FEB 08 202/t
INDIVIDUAL, ELI
CLE
Respondents. BY
CIIGF DEPUTY CLERK

Appeal from a district court order granting an anti-SLAPP
special motion to dismiss. Eighth Judicial District Court, Clark County;
Ronald J. Israel, Judge.
Affirmed.

Pisanelli Bice PLLC and Todd L. Bice, Jordan T. Smith, Emily A. Buchwald,
and Daniel R. Brady, Las Vegas,
for Appellant.

Ballard Spahr LLP and David Chavez, Las Vegas, and Jay Ward Brown and
Chad R. Bowman, Washington, D.C..
for Respondents.

BEFORE THE SUPREME COURT, HERNDON, LEE, and
PARRAGUIRRE, JJ.

SUPREME COURT
OF

zA - v,rr
NEVADA

(01 I947A
 OPINION

By the Court, PARRAGUIRRE, J.:
In designing its anti-SLAPP statutes, Nevada recognized the
essential role of the First Amendment rights to petition the government for
a redress of grievances and to free speech, and the danger posed by civil
claims aimed at chilling the valid exercise of those rights. 1997 Nev. Stat.,

ch. 387, at 1363-64 (preamble to bill enacting anti-SLAPP statutes). To
limit that chilling effect, the statutes provide defendants with an
opportunity—through a special motion to dismiss—to obtain an early and
expeditious resolution of a meritless claim for relief that is based on
protected activity. NRS 41.650; NRS 41.660(1)(a). District courts resolve
such motions based on the two-prong framework laid out in NRS 41.660(3).
Under the first prong, the court must "Hetermine whether the moving
party has established, by a preponderance of the evidence, that the claim is

based upon a good faith communication in furtherance of the right to
petition or the right to free speech in direct connection with an issue of
public concern." NRS 41.660(3)(a). If the moving party makes this initial
showing, the burden shifts to the plaintiff under the second prong to show
"with prima facie evidence a probability of prevailing on the claim." NRS

41.660(3)(b).
In this appeal, we consider the proper burden a public figure
must carry to show a probability of prevailing on a defamation claim at the
second prong of the anti-SLAPP framework. We clarify that, under the
second prong, a public figure defamation plaintiff must provide sufficient
evidence for a jury, by clear and convincing evidence, to reasonably infer
that the publication was made with actual malice. Because respondents
met their respective burden under prong one, and the public figure plaintiff

SUPREME COURT
OF
NEVADA

2
101 1947A
 in the underlying defamation action failed to meet his burden under prong
two, we affirm the district court's order granting respondents' renewed
special motion to dismiss.
FACTS AND PROCEDURAL HISTORY
This appeal arises out of a defamation claim brought by
appellant Steve Wynn—a prominent figure in Nevada gaming and
politics—against respondents The Associated Press and one of its reporters,
Regina Garcia Cano (collectively, AP Respondents)) Following national
reports alleging years of misconduct by Wynn, Garcia Cano obtained from
the Las Vegas Metropolitan Police Department (LVMPD) redacted copies of
two separate citizens' complaints alleging sexual assault by Wynn in the
1970s. She wrote an article describing the allegations in the complaints,
one of which alleged that Steve Wynn had raped the complainant three
times at her Chicago apartment between 1973 and 1974, resulting in a
pregnancy and the birth of a child in a gas station bathroom under unusual
circumstances (the Chicago complaint).2 The Associated Press published
the article.
Wynn filed a defamation complaint against AP Respondents,
asserting that the allegations of sexual assault contained in the Chicago
complaint were false and improbable on their face, and that AP

'This case returns to us on appeal following our reversal of the district
court's grant of AP Respondents' motion to dismiss based on the fair report
privilege. See generally Wynn v. The Associated Press, 136 Nev. 611, 475
P.3d 44 (2020).
2Following a bench trial on a defamation clairn brought by Wynn
against the complainant, a district court found that the Chicago complaint
allegations were, in fact, false. Wynn v. The Associated Press, No. A-18-
772715-C (Nev. 8th Jud. Dist. Ct. Mar. 25, 2020) (Findings of Fact,
Conclusions of Law, and Judgment).
SUPREME COURT
OF
NEVADA

(0) 1947^ .ilirage.
3
 Respondents published the article with actual malice. AP Respondents filed
a special motion to dismiss pursuant to Nevada's anti-SLAPP statutes.
Following limited discovery on the issue of actual malice, the district court

granted a renewed version of AP Respondents' special motion to dismiss,
finding that the article was a good faith communication in furtherance of

the right to free speech in direct connection with an issue of public concern
and that Wynn failed to meet his burden of establishing a probability of
prevailing on the merits of his claim. Wynn now appeals that decision. He
argues that the district court erred in finding both that AP Respondents
met their burden under the first prong and that he failed to meet his burden
under the second prong. Specifically, he argues that the district court
misapplied the actual malice standard relevant to public figures under the

second prong.
DISCUSSION
"We review a decision to grant or deny an anti-SLAPP special
motion to dismiss de novo." Smith v. Zilverberg, 137 Nev. 65, 67, 481 P.3d
1222, 1226 (2021). As explained above, the anti-SLAPP framework
demands a two-prong analysis when considering a special motion to
dismiss. The first prong requires the court to "[d]etermine whether the
moving party has established, by a preponderance of the evidence, that the
claim is based upon a good faith communication in furtherance of the right
to petition or the right to free speech in direct connection with an issue of
public concern." NRS 41.660(3)(a). If the moving party makes this initial
showing, the burden shifts to the plaintiff under the second prong to show
"with prima facie evidence a probability of prevailing on the claim." NRS
41.660(3)(b). Because Wynn challenges the district court's rulings under
both prongs, we will discuss each in turn.

SUPREME COURT
OF
NEVADA

4
I947A .141gti.
 AP Respondents met their burden under the first prong
To rneet the burden under the first prong, the defendant must
show "that the comments at issue fall into one of the four
categories . . . enumerated in NRS 41.637." Stctrk v. Lackey, 136 Nev. 38,
40, 458 P.3d 342, 345 (2020). The relevant category here is found under
NRS 41.637(4), which protects a "[c]ommunication made in direct
connection with an issue of public interest in a place open to the public or

in a public forum, which is truthful or is made without knowledge of its
falsehood." Wynn argues that the district court erred in concluding that the
article by AP Respondents satisfies this category. Spe6ifically, he asserts
that the article does not discuss an issue of public interest and that it was
not truthful or made without knowledge of its falsehood.
In Shapiro v. Welt, we adopted guidelines for district courts to
consider in distinguishing issues of private and public interest.3 133 Nev.

Those guidelines are:
3

(1) "public interest" does not equate with
mere curiosity;
(2) a matter of public interest should be
something of concern to a substantial number of
people; a matter of concern to a speaker and a
relatively small specific audience is not a matter of
public interest;
(3) there should be some degree of closeness
between the challenged statements and the
asserted public interest—the assertion of a broad
and amorphous public interest is not sufficient;
(4) the focus of the speaker's conduct should
be the public interest rather than a mere effort to
gather ammunition for another round of private
controversy; and

SUPAEME COURT
OF
NEVADA

5
(0) 1947A
 35, 39, :389 P.3d 262, 268 (2017). Here, the article and its surrounding
context point to an issue of clear public interest. The article discusses two
new allegations of sexual misconduct by Wynn on the heels of national
reports alleging a pattern of misconduct spanning decades. In the weeks
preceding publication of this article, Wynn resigned as CEO of Wynn
Resorts and as Finance Chair of the Republican National Comrnittee due to
the national reports of alleged misconduct; and contemporaneously, Wynn
Casinos, the Nevada Gaming Control Board, and other regulators launched
investigations into his conduct. The allegations undoubtedly affected his
public business and political affairs, and additional reports of sexual
misconduct would be of concern to a substantial number of people, including
consumers, voters, and the business and governmental entities
investigating precisely this kind of behavior. The public had an interest in
understanding the history of misconduct alleged to have been committed by
one of the most recognized figures in Nevada, and the article directly relates
to that interest.
Wynn further argues that, even if the article relates to an issue
of public interest, the district court erred in concluding the communication
was published without knowledge of its falsehood (i.e., that it was published
in "good faith," NRS 41.637; NRS 41.660(3)(a)). "[Mil affidavit stating that
the defendant believed the communications to be truthful or made them
without knowledge of their falsehood is sufficient to meet the defendant's

(5) a person cannot turn otherwise private
information into a niatter of public interest simply
by communicating it to a large number of people.
Shapiro, 133 Nev. at 39, 389 P.3d at 268 (quoting Piping Rock Partners, Inc.
v. David Lerner Assocs., Inc., 946 F. Supp. 2d 957, 968 (N.D. Cal_ 2013)).
SUPREME COURT
OF
NEVADA

6
UM 19.17A
 burden absent contradictory evidence in the record." Stark, 136 Nev. at 43,
458 P.3d at 347. Here, AP Respondents filed such an affidavit.
In rebuttal, Wynn points to what he claims to be contradictory
evidence in the record. Most notably, he asserts that the Chicago complaint
was absurd on its face, and therefore, AP Respondents must have known it
was false. He also points to a text sent by Garcia Cano to a coworker shortly
after reviewing the complaint in which she wrote "[o[ne of [the complaints]
is crazy." However, we agree with the district court that this evidence is
not sufficient to establish, by a preponderance of the evidence, that AP
Respondents were aware of the complaint's falsity. While the narrative
contained in the complaint is unusual, it was not so unrealistic as to put AP
Respondents on notice as to its falsity, and Garcia Cano's characterization
of the complaint as "crazy" is not persuasive evidence that she knew it to be
false.4 Importantly, because the identifying information in the complaint
received by Garcia Cano was redacted, it would have been fruitless for AP
Respondents to investigate further at the time, and nothing in LVMPD's
response to the unredacted complaint would have put AP Respondents on
notice that the story was false.
Therefore, we agree with the district court that the article was
a good faith communication in furtherance of the right to free speech in
direct connection with an issue of public importance. Because AP
Respondents met their burden under the first prong, we now turn to the
second prong of the anti -SLAPP analysis, first discussing the burden
required of a public figure plaintiff to establish actual malice.

We have considered the additional evidence Wynn points to in this
4

regard and are not persuaded that it demonstrates that AP Respondents
knew the complaint was false.
SUPREME COURT
OF
NEVADA

7
(0) 1947A gegm
,
 A public figure plaintiff's burden under the second prong
As noted, under the second prong of the relevant framework,

the court must determine whether the plaintiff has demonstrated with
prima facie evidence a probability of prevailing on the claim. NRS
41.660(3)(b). Because Wynn is a public figure, to prevail at trial on his
defamation claim, he must prove by clear and convincing evidence that the
publication at issue was rnade with actual rnalice.5 Pegasus v. Reno
Newspapers, Inc., 118 Nev. 706, 719, 57 P.3d 82, 90 (2002). Wynn argues
that his evidence of actual malice at this stage need not meet the clear and
convincing standard in order to establish a probability of prevailing on his
claim because prong two merely requires a "prima facie" probability of
prevailing on the claim. AP Respondents, however, assert that Wynn's
evidence of actual malice must meet the clear and convincing standard. We
have never directly discussed a plaintiff s burden under the second prong
when that prong requires "prima facie" evidence of success but the plaintiff s
claim requires "clear and convincing" evidence to prevail at trial.
We have described the second prong of an anti-SLAPP analysis
as requiring the plaintiff to show that his claim has at least "minimal
merit." Abrams v. Sanson, 136 Nev. 83, 91, 458 P.3d 1062, 1069 (2020).
Minimal merit exists when the plaintiff makes "a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted
by the plaintiff is credited." Wilson v. Parker, Covert & Chidester, 50 P.3d

5 To prevail on his defamation claim, Wynn is also required to show
"(1) a false and defamatory statement by [the] defendant concerning the
plaintiff; (2) an unprivileged publication to a third person; (3) fault . . . ; and
(4) actual or presumed damages." Pegasus v. Reno Newspapers, Inc., 118
Nev. 706, 718, 57 P.3d 82, 90 (2002). However, the only element reasonably
in controversy on appeal is Wynn's ability to establish actual malice.
SUPREME COURT
OF
NEVADA

8
(0) 1947A af.WP
 733, 739 (Cal. 2002) (quoting Matson v. Dvorak, 46 Cal. Rptr. 2d 880, 886
(Ct. App. 1995)). But a favorable judgment in a public figure defamation
claim may only be sustained if the evidence is sufficient for the jury, by clear

and convincing evidence, to infer that the publication was made with actual
malice. Pegasus, 118 Nev. at 721-22, 57 P.3d at 92.
The Legislature has declared that "[w]hen a plaintiff rnust
demonstrate a probability of success of prevailing on a claim pursuant to
NRS 41.660, . . . the plaintiff must meet the same burden of proof that a
plaintiff has been required to meet pursuant to California's [anti-SLAPP]
law." NRS 41.665(2). Thus, we turn to California law to resolve the issue
at hand.
California caselaw regarding a plaintiff s burden of putting
forth prima facie evidence supports the conclusion that, under the second
prong, a plaintiff must provide evidence that would be sufficient for a jury,
by clear and convincing evidence, to reasonably infer that the publication
was made with actual malice. See, e.g., Padres L.P. v. Henderson., 8 Cal.
Rptr. 3d 584, 594 (Ct. App. 2003) ("The plaintiff must make a prima facie
showing of facts that would be sufficient to sustain a favorable judgment
under the applicable evidentiary standard."); Robertson v. Rodriguez, 42
Cal. Rptr. 2d 464, 470 (Ct. App. 1995) (holding that where an element of a
claim must be proven by clear and convincing evidence at trial, the
sufficiency of the plaintiff s prima facie showing on an anti-SLAPP motion
is determined with the higher standard of proof in mind); Looney v. Superior
Ct., 20 Cal. Rptr. 2d 182, 192-93 (Ct. App. 1993) (concluding that at the
summary judgment [stage] in a case where plaintiffs ultimate burden of
proof will be by clear and convincing evidence ... the evidence and all

SUPREME COURT
OF
NEVADA

9
 inferences which can reasonably be drawn therefrom must meet that higher
standard" (internal quotation marks omitted)).
We therefore hold that to demonstrate by prima facie evidence
a probability of success on the merits of a public figure defamation claim,
the plaintiff s evidence must be sufficient for a jury, by clear and convincing
evidence, to reasonably infer that the publication was made with actual
malice. In other words, while the plaintiff at this prong must prove only
that their claim has minimal merit, a public figure defarnation claim does
not have minimal rnerit, as a matter of law, if the plaintiff s evidence of
actual malice would not be sufficient to sustain a favorable verdict under
the clear and convincing standard. If a public figure plaintiff could prevail
on an anti-SLAPP special motion to dismiss by putting forth only minimal
evidence of actual malice, the statutes' mechanism for providing an early
and expeditious resolution of meritless claims would be rendered
ineffectual.
Wynn argues that requiring him to meet a clear and convincing
evidence standard at this stage of the proceedings would violate his
constitutional right to a civil jury trial. See Leiendecker v. Asian Wornen
United of Minn., 895 N.W.2d 623, 635 (Minn. 2017) (holding that a portion
of Minnesota's anti-SLAPP law violated the constitutional right to a jury
trial because it required the nonmoving party to produce "clear and
convincing [evidence] ... that the moving party's acts are not immune"
(internal quotation marks omitted)). To be sure, in Taylor v. Colon, we
previously upheld the second prong of Nevada's anti-SLAPP statutes as
constitutional, partly because the prima facie standard does not interfere
with a jury's fact-finding abilities. 136 Nev. 434, 439, 482 P.3d 1212, 1216

SUPREME COURT
OF
NEVADA

(0) 1 ,14 A
10
 (2020).6 But importantly, "whether the evidence in the record in a
defamation case is sufficient to support a finding of actual malice is a
question of law." Harte-Hank.s Commc'ns, Inc. v. Connaughton, 491 U.S.

657, 685 (1989). And even outside of the anti-SLAPP context, "Nile
question of actual malice goes to the jury only if there is sufficient evidence
for the jury, by clear and convincing evidence, to reasonably infer that the
publication was made with actual malice." Pegasus, 118 Nev. at 721-22, 57

P.3d at 92 (emphases added). Because actual malice is a question that does
not go to a jury unless the evidence is sufficient to meet the clear and
convincing standard, requiring the plaintiffs evidence to meet that
standard at the second prong of an anti-SLAPP analysis does not deny a
plaintiff their constitutional right to a civil jury trial. Our holding in Taylor

did not preclude a requirement that when an element of a particular claim
requires the plaintiff to satisfy a clear and convincing evidence standard
before the claim goes to a jury, the plaintiffs evidence at the second prong
must satisfy that standard. In holding today that such a requirement
exists, we do not replace the prima facie evidence standard; rather, the
requirement that evidence of actual malice meet the clear and convincing
standard is merely a part of the plaintiff s prima facie showing.

6 In a previous version of NRS 41.660, plaintiffs bore a clear and
convincing burden of proof standard at the second prong. The Legislature
amended that statute in 2015 to require only prima facie evidence. 2015
Nev. Stat., ch. 428, § 13, at 2455. Our holding does not rewrite the statute
to return the plaintiffs burden of proof to a clear and convincing standard;
it merely recognizes that evidence of actual malice must meet the clear and
convincing standard to sufficiently demonstrate with prima facie evidence
a probability of prevailing on this type of claim.
SUPREME COURT
OF
N EVADA
11
i(» 1947A
 Wynn failed to meet his burden under the second prong
"[A]ctual malice is proven when a statement is published with
knowledge that it was false or with reckless disregard for its veracity."
Pegasus, 118 Nev. at 722, 57 P.3d at 92. "Reckless disregard for the truth
may be found when the 'defendant entertained serious doubts as to the
truth of the statement. but published it anyway." Id. (quoting Posadas v.

Cit,y of Reno, 109 Nev. 448, 454, 851 P.2d 438, 443 (1993)).
This court has routinely looked to California courts for guidance
in the area of anti-SLAPP law. Coker v. Sassone, 135 Nev. 8, 11, 432 P.3d
746, 749 (2019). California courts treat this prong as they do a motion for
summary judgment; thus, under comparable Nevada law regarding motions
for summary judgment, "the evidence, and any reasonable inferences drawn
from it, must be viewed in [the] light most favorable to the nonmoving
party." Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029
(2005).7 Here, even when the evidence is considered in the light most
favorable to him, Wynn has failed to establish actual malice by sufficient
evidence to sustain a favorable verdict. His attempts to establish AP
Respondents' knowledge of falsity or reckless disregard for the veracity of
the complaint fall short of the heightened clear and convincing standard.
See Gruber v. Baker, 20 Nev. 453, 477, 23 P. 858, 865 (1890) (describing

7We note that prior to 2013, NRS 41.660 required the district court to
treat a special motion to dismiss as a motion for summary judgment. See
2013 Nev. Stat., ch. 176, § 3, at 623. Though the Legislature removed this
language in 2013, subsequent amendments in 2015 restructured the statute
in a way that once again tracks the procedural standards that apply to a
motion for summary judgment. See Coker, 135 Nev. at 10, 432 P.3d at 748
(recognizing that "[a]s amended, the special motion to dismiss again
functions like a summary judgment motion procedurally").
SUPREME COURT
OF
N EVADA
12
10i 19,17A ,ilrf,0
 clear and convincing evidence as satisfactory proof that is "so strong and
cogent as to satisfy the mind and conscience of a common man").
Similar to his arguments under prong one, Wynn argues that

the Chicago complaint was implausible and points to the failure by AP
Respondents to investigate further before publishing as evidence of actual
malice. Again, while the complaint contained unusual elements, that does
not mean that the gist of the allegations reported by AP Respondents—that

Wynn sexually assaulted a woman in Chicago in the 1970s—was untrue or
that AP Respondents should have held serious doubt about those
allegations. As explained, because all identifying information in the
complaint was redacted, it was not possible to meaningfully investigate
further as long as that information was unknown. Wynn again points to
Garcia Cano's text describing the complaint as "crazy" to establish her
subjective doubt. But calling the complaint "crazy" is not clear and
convincing evidence that Garcia Cano believed it to be false or that she
recklessly disregarded whether it was true.8 Wynn also attempts to
establish reckless disregard by highlighting AP Respondents' motivation to
publish the story quickly. But news organizations often have a motivation
to publish stories before their competitors, and in the absence of serious
doubt regarding the veracity of the statement, such a desire does not

8Looking at Wynn's evidence in the light most favorable to him does
not require us to assume that by "crazy" Garcia Cano meant "not believable"
or "unreliable." A more reasonable inference from her characterization is
that she believed the complaint to be "shocking," "disturbing," or, as Garcia
Cano put it in her testimony, "explosive and impactful."
SUPREME COURT
OF
NEVADA

13
,O) 1947A
 establish a reckless disregard for the truth." Pegasus, 118 Nev. at 722, 57
P.3d at 92.
This evidence would not be sufficient for a jury to find, by clear
and convincing evidence, that AP Respondents published the story with
knowledge that it was false or with reckless disregard for its truth.1°
Because Wynn did not produce sufficient evidence of actual malice, he failed
to establish with prima facie evidence a probability of prevailing on his
claim, requiring dismissal.
CONCLUSION
Nevada's anti-SLAPP statutes were designed to limit precisely
the type of claim at issue here, which involves a news organization
publishing an article in a good faith effort to inform their readers regarding
an issue of clear public interest. AP Respondents met their burden under
the first prong to establish, by a preponderance of the evidence, that their
article was a good faith communication in furtherance of the right to free
speech in direct connection with an issue of public concern. Wynn, on the
other hand, did not establish with prima facie evidence a probability of
prevailing on the merits of his defamation claim because he failed to meet
the clear and convincing evidence standard under the second prong that is

9At most, the evidence shows that AP Respondents rnay have held
some doubt as to the veracity of the complaint. But that is not enough to
meet the standard; the defendant must hold serious doubt. See Wynn v.
Smith, 117 Nev. 6, 17, 16 P.3d 424, 431 (2001) (reversing a jury verdict
finding actual malice because the jury instructions omitted "serious" before
"doubt," leading the jury to apply a lower standard).
"Wynn points to some additional evidence of actual malice not
discussed in this opinion, but we are not convinced that it is sufficient to
meet his burden under this prong.
SUPREME COURT
OF
NEVADA

irM7A
14
 applicable to his public figure defamation claim. We therefore affirm the
district court's order granting the renewed special motion to dismiss the
complaint.

arraguirre

We concur:

J.
Herndon

Lee
Osc, J.

SUPREME COURT
OF
NEVADA
15
I tn I 947A