The Lawletter Vol 39 No 10
Fred Shackelford, Senior Attorney, National Legal Research Group
Joining numerous other courts that have addressed the issue, the Nevada Supreme Court has considered for the first time whether a litigant's statements to the media regarding litigation are protected by an absolute privilege. In Jacobs v. Adelson, 325 P.3d 1282 (Nev. 2014), a wrongful termination claim was brought against a former employer and its chief executive officer, Sheldon Adelson. The case attracted widespread media attention, and during its course, Adelson was quoted in a Wall Street Journal article as follows: "We have a substantial list of reasons why Steve Jacobs was fired for cause and interestingly he has not refuted a single one of them. Instead, he has attempted to explain his termination by using outright lies and fabrications which seem to have their origins in delusion." Id. at 1284.
The plaintiff amended his complaint to add a count for defamation per se. Defendants successfully moved to dismiss this count, arguing that the statement was absolutely privileged as a communication made in the course of judicial proceedings. On appeal, the Jacobs court recognized that the absolute privilege is based upon the belief that the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements. The court observed that it had not previously considered whether the privilege applies to statements made to members of the media. However, the court noted that prior cases had held that the privilege does not apply when statements are made to someone who has no interest in the outcome of the litigation.
The court recognized that most courts in other states have held that the absolute privilege does not apply to statements made to the media. The court outlined the rationale for the majority rule:
Statements made to the media "do little, if anything, to promote the truth finding process in a judicial proceeding. . . . [They] do not generally encourage open and honest discussion between the parties and their counsel in order to resolve disputes; indeed, such statements often do just the opposite." Pratt v. Nelson, 164 P.3d 366, 381 (Utah 2007). And allowing defamation claims for statements made to the media will not generally hinder investigations or the detailing of claims. Milford Power, 918 F.Supp. at 486; see also Asay, 594 F.2d at 698. Thus, the need for absolute privilege evaporates. Milford Power, 918 F.Supp. at 486. Because the privilege's purpose is not to protect those making defamatory comments but "to lessen the chilling effect on those who seek to utilize the judicial process to seek relief," these courts have declined to extend the privilege in this context.
Id. at 1286.
The Jacobs court adopted the majority rule, reasoning that a nonparty must have an interest in, or connection to, the outcome of the case beyond an interest as a mere observer. The court stated that the nature of the recipient's interest in, or connection to, the litigation is a case-specific, fact-intensive inquiry. Turning to the facts of the case, the court concluded that the Wall Street Journal had no interest other than as an observer of the proceedings. The court also drew a distinction between "bona fide litigation activities and a public relations campaign." Id. Finally, the court declined to consider whether the conditional privilege of reply applied, because that issue had not been developed at trial.
