John W. Dean

How Harry Reid Might Respond to Sharron Angle's Planned "SLAPP" Suit

By JOHN W. DEAN
Friday, July 9, 2010

Nevada Republican Senate candidate Sharron Angle has indicated that she is going to sue her opponent Harry Reid, the Democratic Majority Leader of the US Senate, for republishing her primary-campaign website at therealsharonangle.com.

Such a suit would be bizarre, for it would make it appear that Angle does not want Nevada voters to learn how she really feels about the issues. In fact, that may be the case. Angle is a darling of the Tea Party movement, but she has considerably toned down her Tea-Party-pleasing views for the general election.

Angle had her Washington, DC attorney Cleta Mitchell send the Reid campaign a letter demanding that the Reid campaign cease re-publishing Angle's primary campaign website. Mitchell informed the Reid campaign that Angle was going "to pursue all available legal remedies" (read: file a lawsuit) if the Reid campaign continued to post this material on the Internet.

The Reid campaign has continued to post the material although they did remove some of it. They tweaked the old website to make clear that they had no interest in gathering information from Angle supporters. After learning her primary campaign literature was still on the Internet, Angle told a Nevada radio station that she was going to "pursue" Reid for using it, all but stating that she was going to take him to court.

But surely, Angle's Washington, DC attorney, Cleta Mitchell, knows that a court may well deem Angle's suit to be a "Strategic Lawsuit Against Public Participation" -- also known as a "SLAPP suit." And surely, Mitchell knows, as well, that Nevada has a strong anti-SLAPP statute, which would enable the Reid campaign to stop their lawsuit and most likely at Angle's expense. Indeed, if Angle sues, she will do so at her considerable peril, both legal and political.

Why a Lawsuit By Angle Would Very Likely Be Deemed a SLAPP Suit

When Sharron Angle speaks, it is often not in her own best interests. She is not the sharpest political knife in the Tea Party's drawer, and if Cleta Mitchell actually thought she had a basis for a lawsuit, Angle has largely mooted that potential.

Mitchell's cease-and-desist letter protested that the Reid campaign, in republishing Angle's material, was misappropriating copyrighted material. In addition, the letter complained that the republished material was soliciting the names and email addresses of Angle supporters -- but that segment of the material, as noted, was quickly removed by the Reid campaign. Tellingly, Angle herself admits that she has suffered no real damages from the republication, only political embarrassment:

"Well, your website is like you, it's your intellectual property," Angle told a Nevada radio station. "So they [the Reid campaign] can't use something that's yours, intellectual property, unless they pay you for it or get your permission... And he didn't ask me for it, and he didn't pay me for it. I would have sold it to him." [Emphasis added.] As to the value of the material that was republished, Angle conceded, "There is nothing there, there is nothing there that everybody doesn't know, it was up the whole primary."

These concessions pull the rug out from under any lawsuit Angle is planning. Indeed, in light of Angle's own remarks, if a lawsuit is now filed, it would be almost impossible to view it as anything other than an attempt to harass the Reid campaign for focusing attention on Angle's real views -- which call for killing Social Security, eliminating the Departments of Education and Energy, and shipping nuclear waste to Nevada -- to mention but a few.

Although Angle may feel that there is "nothing there" in the re-published material, clearly her well-financed professional handlers, who took over after she won the GOP senate nomination, know otherwise. Yet their mishandling of the matter has only focused far more attention on Angle's radical record, than the republication of the material on the Internet ever would have.

Angle's filing a specious lawsuit could keep attention on that record until Election Day, and not only help defeat her campaign, but also ensure that it pays dearly. Thus, if Angle is sensible, she will not sue.

How Anti-SLAPP Laws Prevent Specious Lawsuits

California has led the nation in providing a fast and efficient legal remedy when persons who are exercising their First Amendment rights, by engaging in matters of public debate, are harassed and silenced by the efforts of well-funded individuals or organizations who file baseless legal actions. Other states have followed California's example, and today, many states have such laws, including Nevada.

The thrust of these laws is to protect those who engage in public debate on issues of public importance from being silenced by specious lawsuits, or by the fear of such legal actions. When a lawsuit is filed in an attempt to silence those who raise public issues, the so-called "anti-SLAPP" laws provide a fast remedy.

In civil litigation, the discovery process (consisting of written interrogatories, depositions, and endless motions about the scope and nature of discovery) can be phenomenally expensive. Often, the only persons who benefit are the attorneys collecting the fees. But in some instances, a deep-pocketed plaintiff may see benefit in forcing a shallow-pocketed defendant into a discovery war. (This also works the other way, when an individual sues a wealthy corporation.) While costly to both parties, the discovery process is devastating to the more shallow-pocketed party. No political campaign can truly afford litigation.

Anti-SLAPP actions cut off discovery and everything else quickly, allowing a judge to throw out cases that are not likely to succeed -- and when the only true effect is to cost the defendant endless time and expense for having spoken out about an issue of public interest and importance.

These statutes also award attorneys' fees to the prevailing party, which is not the norm in American civil litigation, as well as compensatory and punitive damages. In short, filing a specious action to cut off free speech in states with anti-SLAPP laws can be very expensive, and that blowback can come very quickly.

It is Likely that the Reid Campaign Could Successfully Invoke Nevada's Anti-SLAPP Statute

While the California anti-SLAPP statue has been widely used, with countless state and federal courts examining and interpreting it, Nevada has no reported judicial decisions interpreting its own anti-SLAPP statute. Yet Nevada's statute is sufficiently broad, and sufficiently similar to other states' laws, that should the Angle campaign actually file a lawsuit to prevent the use of Angle's old website material, you can rest assured that Nevada's statute will be tested.

(One caveat is necessary here, however: It is not clear that anti-SLAPP statutes apply to actions filed under the federal copyright law, which is authorized by the U.S. Constitution. But copyright actions typically allege violations of both the federal copyright statute, and the state's common-law copyright protection -- the basis for which is found in state case law. More importantly, it is anything but clear that the Reid campaign's use of this material is a copyright violation in the first place -- and the copyright statute is also unique in that it awards the prevailing party attorneys' fees.)

In sum, all the facts and circumstances counsel sharply against a suit by Sharron Angle against the Reid campaign. Angle has tacitly agreed that she has suffered no financial damages as a result of the republication of her material. The Nevada anti-SLAPP statute is likely to be interpreted to be as strong and effective as California's has proven to be. Finally, a lawsuit by Angle will only continue to focus attention on her often loony political philosophy, rather on than the re-spun, re-packaged views she is now offering. In light of all these considerations, it is unrealistic to think that any attorney with Angle's best interests in mind would encourage her or her campaign to file a legal action against the Reid campaign on this basis.

Meanwhile, the Reid campaign can buy some very cheap insurance, and perhaps make a bit more news about Sharron Angle's over-the-top views in the bargain, by sending her a check for, let's say, $10.00 for its use of her old webpage. Even if this is overpaying for intellectual property -- since there is "nothing there" by Angle's reckoning -- it will still mean that the Majority Leader cannot be accused of some dirty trick, as the Angle campaign now complains, for he will have paid for the material fair and square.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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