ROSEN VS. TARKANIAN
2019 NV 59
| Nev. | 2019Background
- 2016 House campaign: Jacky Rosen ran an ad stating Danny Tarkanian "set up 13 fake charities," that "seniors lost millions," and that the charities were "fronts for telemarketing schemes," citing news articles.
- Tarkanian previously sued State Senator Mike Schneider over similar statements; a jury found Schneider's statements defamatory and the parties later settled; Tarkanian sent Rosen a cease‑and‑desist but Rosen continued running the ad.
- After the election, Tarkanian sued Rosen for libel per se, slander per se, and intentional infliction of emotional distress; Rosen filed a Nevada anti‑SLAPP (special) motion to dismiss under NRS 41.650–41.660.
- The district court denied the anti‑SLAPP motion, finding Rosen failed prong one (good faith) and concluding Tarkanian made a prima facie showing under prong two (probability of prevailing).
- The Nevada Supreme Court reversed: it held courts must assess the "gist or sting" of communications (not parse words), found Rosen met the preponderance‑of‑the‑evidence burden showing the statements were substantively true or made without knowledge of falsity, and found Tarkanian failed to show actual malice; it remanded with instructions to grant the special motion (dismissing all claims tied to the protected communications).
Issues
| Issue | Plaintiff's Argument (Tarkanian) | Defendant's Argument (Rosen) | Held |
|---|---|---|---|
| Standard for "good faith" under Nevada anti‑SLAPP prong one | Good faith should be assessed by close parsing of specific words/statements | Good faith should be judged by the gist/sting of the communication as a whole | Court: apply "gist or sting" standard (examine overall substance, not word‑by‑word) |
| Did Rosen meet prong one (preponderance) showing statements were truthful or made without knowledge of falsity? | Prior jury finding against Schneider and cease‑and‑desist show Rosen knew or recklessly disregarded falsity | Rosen relied on multiple news articles and admissions linking Tarkanian to telemarketing schemes; she believed statements were true | Court: Rosen met her burden — gist was substantively true or made without knowledge of falsity |
| Did Tarkanian show prima facie probability of prevailing (prong two)? | The Schneider verdict, the cease‑and‑desist, and alleged inaccuracies in Rosen’s citations create a triable claim of actual malice | Rosen’s evidence (articles, admissions) defeats a prima facie showing of actual malice | Court: Tarkanian failed to show a probability of prevailing (no sufficient evidence of actual malice) |
| Effect on related tort claims (e.g., IIED) if anti‑SLAPP granted | Related claims may survive if independent of protected speech | Claims based on those protected communications must be dismissed | Court: granting the special motion requires dismissal of the entire complaint insofar as claims are based on the good‑faith communications |
Key Cases Cited
- Coker v. Sassone, 432 P.3d 746 (Nev. 2019) (standard of review and anti‑SLAPP procedure)
- Pegasus v. Reno Newspapers, Inc., 57 P.3d 82 (Nev. 2002) (defamation standards; "gist or sting" doctrine)
- Delucchi v. Songer, 396 P.3d 826 (Nev. 2017) (definition of good faith under anti‑SLAPP)
- N.Y. Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (actual malice standard for public‑figure defamation)
- Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (U.S. 1991) (truth assessed by gist/sting of statements)
- Oracle USA, Inc. v. Rimini St., Inc., 6 F. Supp. 3d 1108 (D. Nev. 2014) (do not dissect publication word‑by‑word; assess overall publication)