Adelson v. Harris
774 F.3d 803
| 2d Cir. | 2014Background
- Sheldon Adelson (Nevada citizen) sued NJDC, Marc Stanley, and David Harris for defamation arising from an NJDC online petition and press release during the 2012 election cycle.
- The petition repeated allegations from a Nevada lawsuit (Jacobs v. LVSC) that Adelson "personally approved" prostitution in Macau; the petition hyperlinked (blue underlined text) to an AP/Huffington Post article as the sole source.
- Appellees removed the petition after Adelson’s representatives disputed the allegations; they later posted a press release standing by the petition.
- Adelson sued in S.D.N.Y.; the district court dismissed under Fed. R. Civ. P. 12(b)(6) and Nevada’s anti-SLAPP statute (pre-2013), denied Adelson discovery, extended the anti-SLAPP filing period nunc pro tunc, and awarded fees.
- The Second Circuit found two unsettled Nevada-law questions potentially dispositive and certified them to the Nevada Supreme Court rather than decide a possible First Amendment question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a hyperlink to source material about judicial proceedings suffices for Nevada's common-law fair report privilege | Adelson: hyperlink alone is insufficient; other explicit attribution (e.g., footnote or URL) required | NJDC: visible hyperlink (blue, underlined) to AP/HuffPost article suffices as attribution for the privilege | Certified to Nevada Supreme Court as unresolved state-law question |
| Whether Nevada's pre-2013 anti-SLAPP statute covered speech aimed at influencing an election not addressed to a government agency | Adelson: John v. Douglas Cnty. suggests protection limited to communications to government agencies; statute therefore didn’t cover NJDC petition | NJDC: statutory text (prong 1) protects communications aimed at procuring governmental or electoral action; petition fits | Certified to Nevada Supreme Court to resolve ambiguity about scope pre-2013 |
| Whether Nevada’s anti-SLAPP statute is applied in federal court under Erie and whether its immunity/fee-shifting/discovery provisions apply | Adelson: challenges to applying state anti-SLAPP rules in federal forum, especially discovery limits | NJDC: anti-SLAPP immunity and fee-shifting are substantive and should apply in federal diversity/federal-question cases; discovery bar raises Erie questions | Federal courts may apply state anti-SLAPP immunity and fee-shifting under Erie; district court did not err in applying them here; discovery denial reviewed under Federal Rule 56 and was not an abuse |
| Whether the district court abused its discretion in extending the 60-day statutory time to file an anti-SLAPP motion nunc pro tunc | Adelson: statutory deadline is strict and cannot be extended; extension was improper | NJDC: statute allows courts to extend for good cause; district court reasonably exercised discretion given choice-of-law uncertainty and timely filing of similar motion | Extension nunc pro tunc was within district court's discretion; upheld |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (statement of opinion vs. fact in defamation law)
- New York Times Co. v. Sullivan, 376 U.S. 254 (constitutional standard for public-figure defamation)
- Erie R.R. Co. v. Tompkins, 304 U.S. 64 (state substantive law applies in federal courts under Erie)
- Jankovic v. Int’l Crisis Grp., 593 F.3d 22 (D.C. Cir.) (treating web addresses/hyperlinks in privilege context)
- U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir.) (applying state anti-SLAPP in federal court)
- John v. Douglas Cnty. Sch. Dist., 125 Nev. 746 (Nev. 2009) (interpreting scope of Nevada anti-SLAPP protections)
- Lubin v. Kunin, 117 Nev. 107 (Nev. 2001) (Nevada discussion of fair report privilege and opinion vs. fact)
- Sahara Gaming Corp. v. Culinary Workers Union Local 226, 115 Nev. 212 (Nev. 1999) (Nevada on fair report privilege)