Adelson v. Harris
876 F.3d 413
2d Cir.2017Background
- Sheldon Adelson sued the National Jewish Democratic Council (NJDC) and two officers for defamation over a 2012 online petition that described his campaign contributions as coming from "dirty/tainted" money and said he "personally approved" of prostitution in his Chinese casinos.
- The petition attributed those allegations to an Associated Press (AP) story via a hyperlink to the AP content.
- The Southern District of New York dismissed Adelson's complaint under Rule 12(b)(6) and applied Nevada’s anti‑SLAPP statute to award fees to defendants; the district court also found the statements were privileged or opinion and that defendants lacked knowledge of falsity.
- On appeal the Second Circuit affirmed in part and certified two questions to the Nevada Supreme Court about (1) whether a hyperlink to judicial-source material can invoke Nevada’s fair report privilege and (2) whether Nevada’s pre‑2013 anti‑SLAPP statute covers election‑influencing speech not addressed to a government agency.
- The Nevada Supreme Court answered both questions affirmatively: a hyperlink to judicial-source material may suffice for the common law fair report privilege, and the anti‑SLAPP statute covers communications aimed at procuring governmental or electoral action even if not addressed to an agency.
- After receiving Nevada’s answers, the Second Circuit affirmed the dismissal, holding the fair report privilege applied and that Adelson failed to plausibly allege defendants knew the statements were false (so anti‑SLAPP protection applied and discovery on scienter was properly denied).
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 argued the hyperlink did not adequately attribute the statements to the AP story, so privilege shouldn’t apply | NJDC argued the hyperlink meaningfully attributed the allegations to the AP source and invoked the fair report privilege | Nevada Supreme Court and Second Circuit: hyperlink may suffice; here the petition fell within Nevada’s fair report privilege, dismissal affirmed |
| Whether Nevada’s pre‑2013 anti‑SLAPP statute covers speech aimed at influencing elections not addressed to a government agency | Adelson argued the statute did not apply because the petition was not addressed to a government agency | NJDC argued the statute covers communications aimed at procuring governmental or electoral outcomes even if not addressed to an agency | Nevada Supreme Court (citing Delucchi) and Second Circuit: statute covers such electoral communications; anti‑SLAPP applies |
| Whether defendants acted with knowledge of falsity (scienter) and whether discovery on scienter should be allowed | Adelson asserted the complaint alleged non‑privileged, actionable false statements (e.g., that prostitution funds financed contributions) and sought discovery on scienter | NJDC argued Adelson failed to plead facts showing knowledge of falsity; discovery was not likely to produce a material issue of fact | Second Circuit: Adelson failed to allege facts showing knowledge of falsity; district court correctly denied additional discovery and applied anti‑SLAPP protections |
| Whether statements were non‑privileged actionable facts vs. protected opinion or privileged reports | Adelson emphasized some contested phrasing as factual and non‑privileged | NJDC maintained portions were opinion or were privileged reports of judicial proceedings | Second Circuit: prior ruling that opinion portions are protected stands; remaining factual allegations were covered by the fair report privilege |
Key Cases Cited
- Adelson v. Harris, 774 F.3d 803 (2d Cir. 2014) (prior Second Circuit opinion addressing dismissal and certified questions)
- Adelson v. Harris, 402 P.3d 665 (Nev. 2017) (Nevada Supreme Court answer: hyperlink can invoke fair report privilege; anti‑SLAPP covers electoral communications)
- Delucchi v. Songer, 396 P.3d 826 (Nev. 2017) (Nevada Supreme Court construing anti‑SLAPP coverage to include communications aimed at procuring electoral outcomes)
- Adelson v. Harris, 973 F. Supp. 2d 467 (S.D.N.Y. 2013) (district court dismissal applying Nevada law, fair report privilege, and anti‑SLAPP statute)