FEB 08 202/t 

ELI 

CLE 

BY 

CIIGF DEPUTY CLERK 

140 Nev., Advance Opinion (0 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

SUPREME COURT 

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NEVADA 

(01 I947A 

STEVE WYNN, AN INDIVIDUAL, No. 85804 

Appellant, 

vs. 

THE ASSOCIATED PRESS, A 

FOREIGN CORPORATION; AND 

REGINA GARCIA CANO, AN 

INDIVIDUAL, 

Respondents. 

Appeal from a district court order granting an anti-SLAPP 

special motion to dismiss. Eighth Judicial District Court, Clark County; 

Ronald J. Israel, Judge. 

Affirmed. 

Pisanelli Bice PLLC and Todd L. Bice, Jordan T. Smith, Emily A. Buchwald, 

and Daniel R. Brady, Las Vegas, 

for Appellant. 

Ballard Spahr LLP and David Chavez, Las Vegas, and Jay Ward Brown and 

Chad R. Bowman, Washington, D.C.. 

for Respondents. 

BEFORE THE SUPREME COURT, HERNDON, LEE, and 

PARRAGUIRRE, JJ. 

zA - v,rr 
OPINION 

By the Court, PARRAGUIRRE, J.: 

In designing its anti-SLAPP statutes, Nevada recognized the 

essential role of the First Amendment rights to petition the government for 

a redress of grievances and to free speech, and the danger posed by civil 

claims aimed at chilling the valid exercise of those rights. 1997 Nev. Stat., 

ch. 387, at 1363-64 (preamble to bill enacting anti-SLAPP statutes). To 

limit that chilling effect, the statutes provide defendants with an 

opportunity—through a special motion to dismiss—to obtain an early and 

expeditious resolution of a meritless claim for relief that is based on 

protected activity. NRS 41.650; NRS 41.660(1)(a). District courts resolve 

such motions based on the two-prong framework laid out in NRS 41.660(3). 

Under the first prong, the court must "Hetermine whether the moving 

party has established, by a preponderance of the evidence, that the claim is 

based upon a good faith communication in furtherance of the right to 

petition or the right to free speech in direct connection with an issue of 

public concern." NRS 41.660(3)(a). If the moving party makes this initial 

showing, the burden shifts to the plaintiff under the second prong to show 

"with prima facie evidence a probability of prevailing on the claim." NRS 

41.660(3)(b). 

In this appeal, we consider the proper burden a public figure 

must carry to show a probability of prevailing on a defamation claim at the 

second prong of the anti-SLAPP framework. We clarify that, under the 

second prong, a public figure defamation plaintiff must provide sufficient 

evidence for a jury, by clear and convincing evidence, to reasonably infer 

that the publication was made with actual malice. Because respondents 

met their respective burden under prong one, and the public figure plaintiff 

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in the underlying defamation action failed to meet his burden under prong 

two, we affirm the district court's order granting respondents' renewed 

special motion to dismiss. 

FACTS AND PROCEDURAL HISTORY 

This appeal arises out of a defamation claim brought by 

appellant Steve Wynn—a prominent figure in Nevada gaming and 

politics—against respondents The Associated Press and one of its reporters, 

Regina Garcia Cano (collectively, AP Respondents)) Following national 

reports alleging years of misconduct by Wynn, Garcia Cano obtained from 

the Las Vegas Metropolitan Police Department (LVMPD) redacted copies of 

two separate citizens' complaints alleging sexual assault by Wynn in the 

1970s. She wrote an article describing the allegations in the complaints, 

one of which alleged that Steve Wynn had raped the complainant three 

times at her Chicago apartment between 1973 and 1974, resulting in a 

pregnancy and the birth of a child in a gas station bathroom under unusual 

circumstances (the Chicago complaint).2 The Associated Press published 

the article. 

Wynn filed a defamation complaint against AP Respondents, 

asserting that the allegations of sexual assault contained in the Chicago 

complaint were false and improbable on their face, and that AP 

'This case returns to us on appeal following our reversal of the district 

court's grant of AP Respondents' motion to dismiss based on the fair report 

privilege. See generally Wynn v. The Associated Press, 136 Nev. 611, 475 

P.3d 44 (2020). 

2Following a bench trial on a defamation clairn brought by Wynn 

against the complainant, a district court found that the Chicago complaint 

allegations were, in fact, false. Wynn v. The Associated Press, No. A-18-

772715-C (Nev. 8th Jud. Dist. Ct. Mar. 25, 2020) (Findings of Fact, 

Conclusions of Law, and Judgment). 

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Respondents published the article with actual malice. AP Respondents filed 

a special motion to dismiss pursuant to Nevada's anti-SLAPP statutes. 

Following limited discovery on the issue of actual malice, the district court 

granted a renewed version of AP Respondents' special motion to dismiss, 

finding that the article was a good faith communication in furtherance of 

the right to free speech in direct connection with an issue of public concern 

and that Wynn failed to meet his burden of establishing a probability of 

prevailing on the merits of his claim. Wynn now appeals that decision. He 

argues that the district court erred in finding both that AP Respondents 

met their burden under the first prong and that he failed to meet his burden 

under the second prong. Specifically, he argues that the district court 

misapplied the actual malice standard relevant to public figures under the 

second prong. 

DISCUSSION 

"We review a decision to grant or deny an anti-SLAPP special 

motion to dismiss de novo." Smith v. Zilverberg, 137 Nev. 65, 67, 481 P.3d 

1222, 1226 (2021). As explained above, the anti-SLAPP framework 

demands a two-prong analysis when considering a special motion to 

dismiss. The first prong requires the court to "[d]etermine whether the 

moving party has established, by a preponderance of the evidence, that the 

claim is based upon a good faith communication in furtherance of the right 

to petition or the right to free speech in direct connection with an issue of 

public concern." NRS 41.660(3)(a). If the moving party makes this initial 

showing, the burden shifts to the plaintiff under the second prong to show 

"with prima facie evidence a probability of prevailing on the claim." NRS 

41.660(3)(b). Because Wynn challenges the district court's rulings under 

both prongs, we will discuss each in turn. 

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AP Respondents met their burden under the first prong 

To rneet the burden under the first prong, the defendant must 

show "that the comments at issue fall into one of the four 

categories . . . enumerated in NRS 41.637." Stctrk v. Lackey, 136 Nev. 38, 

40, 458 P.3d 342, 345 (2020). The relevant category here is found under 

NRS 41.637(4), which protects a "[c]ommunication made in direct 

connection with an issue of public interest in a place open to the public or 

in a public forum, which is truthful or is made without knowledge of its 

falsehood." Wynn argues that the district court erred in concluding that the 

article by AP Respondents satisfies this category. Spe6ifically, he asserts 

that the article does not discuss an issue of public interest and that it was 

not truthful or made without knowledge of its falsehood. 

In Shapiro v. Welt, we adopted guidelines for district courts to 

consider in distinguishing issues of private and public interest.3 133 Nev. 

3Those guidelines are: 

(1) "public interest" does not equate with 

mere curiosity; 

(2) a matter of public interest should be 

something of concern to a substantial number of 

people; a matter of concern to a speaker and a 

relatively small specific audience is not a matter of 

public interest; 

(3) there should be some degree of closeness 

between the challenged statements and the 

asserted public interest—the assertion of a broad 

and amorphous public interest is not sufficient; 

(4) the focus of the speaker's conduct should 

be the public interest rather than a mere effort to 

gather ammunition for another round of private 

controversy; and 

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35, 39, :389 P.3d 262, 268 (2017). Here, the article and its surrounding 

context point to an issue of clear public interest. The article discusses two 

new allegations of sexual misconduct by Wynn on the heels of national 

reports alleging a pattern of misconduct spanning decades. In the weeks 

preceding publication of this article, Wynn resigned as CEO of Wynn 

Resorts and as Finance Chair of the Republican National Comrnittee due to 

the national reports of alleged misconduct; and contemporaneously, Wynn 

Casinos, the Nevada Gaming Control Board, and other regulators launched 

investigations into his conduct. The allegations undoubtedly affected his 

public business and political affairs, and additional reports of sexual 

misconduct would be of concern to a substantial number of people, including 

consumers, voters, and the business and governmental entities 

investigating precisely this kind of behavior. The public had an interest in 

understanding the history of misconduct alleged to have been committed by 

one of the most recognized figures in Nevada, and the article directly relates 

to that interest. 

Wynn further argues that, even if the article relates to an issue 

of public interest, the district court erred in concluding the communication 

was published without knowledge of its falsehood (i.e., that it was published 

in "good faith," NRS 41.637; NRS 41.660(3)(a)). "[Mil affidavit stating that 

the defendant believed the communications to be truthful or made them 

without knowledge of their falsehood is sufficient to meet the defendant's 

(5) a person cannot turn otherwise private 

information into a niatter of public interest simply 

by communicating it to a large number of people. 

Shapiro, 133 Nev. at 39, 389 P.3d at 268 (quoting Piping Rock Partners, Inc. 

v. David Lerner Assocs., Inc., 946 F. Supp. 2d 957, 968 (N.D. Cal_ 2013)). 

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burden absent contradictory evidence in the record." Stark, 136 Nev. at 43, 

458 P.3d at 347. Here, AP Respondents filed such an affidavit. 

In rebuttal, Wynn points to what he claims to be contradictory 

evidence in the record. Most notably, he asserts that the Chicago complaint 

was absurd on its face, and therefore, AP Respondents must have known it 

was false. He also points to a text sent by Garcia Cano to a coworker shortly 

after reviewing the complaint in which she wrote "[o[ne of [the complaints] 

is crazy." However, we agree with the district court that this evidence is 

not sufficient to establish, by a preponderance of the evidence, that AP 

Respondents were aware of the complaint's falsity. While the narrative 

contained in the complaint is unusual, it was not so unrealistic as to put AP 

Respondents on notice as to its falsity, and Garcia Cano's characterization 

of the complaint as "crazy" is not persuasive evidence that she knew it to be 

false.4 Importantly, because the identifying information in the complaint 

received by Garcia Cano was redacted, it would have been fruitless for AP 

Respondents to investigate further at the time, and nothing in LVMPD's 

response to the unredacted complaint would have put AP Respondents on 

notice that the story was false. 

Therefore, we agree with the district court that the article was 

a good faith communication in furtherance of the right to free speech in 

direct connection with an issue of public importance. Because AP 

Respondents met their burden under the first prong, we now turn to the 

second prong of the anti -SLAPP analysis, first discussing the burden 

required of a public figure plaintiff to establish actual malice. 

4We have considered the additional evidence Wynn points to in this 

regard and are not persuaded that it demonstrates that AP Respondents 

knew the complaint was false. 

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A public figure plaintiff's burden under the second prong 

As noted, under the second prong of the relevant framework, 

the court must determine whether the plaintiff has demonstrated with 

prima facie evidence a probability of prevailing on the claim. NRS 

41.660(3)(b). Because Wynn is a public figure, to prevail at trial on his 

defamation claim, he must prove by clear and convincing evidence that the 

publication at issue was rnade with actual rnalice.5 Pegasus v. Reno 

Newspapers, Inc., 118 Nev. 706, 719, 57 P.3d 82, 90 (2002). Wynn argues 

that his evidence of actual malice at this stage need not meet the clear and 

convincing standard in order to establish a probability of prevailing on his 

claim because prong two merely requires a "prima facie" probability of 

prevailing on the claim. AP Respondents, however, assert that Wynn's 

evidence of actual malice must meet the clear and convincing standard. We 

have never directly discussed a plaintiff s burden under the second prong 

when that prong requires "prima facie" evidence of success but the plaintiff s 

claim requires "clear and convincing" evidence to prevail at trial. 

We have described the second prong of an anti-SLAPP analysis 

as requiring the plaintiff to show that his claim has at least "minimal 

merit." Abrams v. Sanson, 136 Nev. 83, 91, 458 P.3d 1062, 1069 (2020). 

Minimal merit exists when the plaintiff makes "a sufficient prima facie 

showing of facts to sustain a favorable judgment if the evidence submitted 

by the plaintiff is credited." Wilson v. Parker, Covert & Chidester, 50 P.3d 

5To prevail on his defamation claim, Wynn is also required to show 

"(1) a false and defamatory statement by [the] defendant concerning the 

plaintiff; (2) an unprivileged publication to a third person; (3) fault . . . ; and 

(4) actual or presumed damages." Pegasus v. Reno Newspapers, Inc., 118 

Nev. 706, 718, 57 P.3d 82, 90 (2002). However, the only element reasonably 

in controversy on appeal is Wynn's ability to establish actual malice. 

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733, 739 (Cal. 2002) (quoting Matson v. Dvorak, 46 Cal. Rptr. 2d 880, 886 

(Ct. App. 1995)). But a favorable judgment in a public figure defamation 

claim may only be sustained if the evidence is sufficient for the jury, by clear 

and convincing evidence, to infer that the publication was made with actual 

malice. Pegasus, 118 Nev. at 721-22, 57 P.3d at 92. 

The Legislature has declared that "[w]hen a plaintiff rnust 

demonstrate a probability of success of prevailing on a claim pursuant to 

NRS 41.660, . . . the plaintiff must meet the same burden of proof that a 

plaintiff has been required to meet pursuant to California's [anti-SLAPP] 

law." NRS 41.665(2). Thus, we turn to California law to resolve the issue 

at hand. 

California caselaw regarding a plaintiff s burden of putting 

forth prima facie evidence supports the conclusion that, under the second 

prong, a plaintiff must provide evidence that would be sufficient for a jury, 

by clear and convincing evidence, to reasonably infer that the publication 

was made with actual malice. See, e.g., Padres L.P. v. Henderson., 8 Cal. 

Rptr. 3d 584, 594 (Ct. App. 2003) ("The plaintiff must make a prima facie 

showing of facts that would be sufficient to sustain a favorable judgment 

under the applicable evidentiary standard."); Robertson v. Rodriguez, 42 

Cal. Rptr. 2d 464, 470 (Ct. App. 1995) (holding that where an element of a 

claim must be proven by clear and convincing evidence at trial, the 

sufficiency of the plaintiff s prima facie showing on an anti-SLAPP motion 

is determined with the higher standard of proof in mind); Looney v. Superior 

Ct., 20 Cal. Rptr. 2d 182, 192-93 (Ct. App. 1993) (concluding that at the 

summary judgment [stage] in a case where plaintiffs ultimate burden of 

proof will be by clear and convincing evidence ... the evidence and all 

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inferences which can reasonably be drawn therefrom must meet that higher 

standard" (internal quotation marks omitted)). 

We therefore hold that to demonstrate by prima facie evidence 

a probability of success on the merits of a public figure defamation claim, 

the plaintiff s evidence must be sufficient for a jury, by clear and convincing 

evidence, to reasonably infer that the publication was made with actual 

malice. In other words, while the plaintiff at this prong must prove only 

that their claim has minimal merit, a public figure defarnation claim does 

not have minimal rnerit, as a matter of law, if the plaintiff s evidence of 

actual malice would not be sufficient to sustain a favorable verdict under 

the clear and convincing standard. If a public figure plaintiff could prevail 

on an anti-SLAPP special motion to dismiss by putting forth only minimal 

evidence of actual malice, the statutes' mechanism for providing an early 

and expeditious resolution of meritless claims would be rendered 

ineffectual. 

Wynn argues that requiring him to meet a clear and convincing 

evidence standard at this stage of the proceedings would violate his 

constitutional right to a civil jury trial. See Leiendecker v. Asian Wornen 

United of Minn., 895 N.W.2d 623, 635 (Minn. 2017) (holding that a portion 

of Minnesota's anti-SLAPP law violated the constitutional right to a jury 

trial because it required the nonmoving party to produce "clear and 

convincing [evidence] ... that the moving party's acts are not immune" 

(internal quotation marks omitted)). To be sure, in Taylor v. Colon, we 

previously upheld the second prong of Nevada's anti-SLAPP statutes as 

constitutional, partly because the prima facie standard does not interfere 

with a jury's fact-finding abilities. 136 Nev. 434, 439, 482 P.3d 1212, 1216 

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(2020).6 But importantly, "whether the evidence in the record in a 

defamation case is sufficient to support a finding of actual malice is a 

question of law." Harte-Hank.s Commc'ns, Inc. v. Connaughton, 491 U.S. 

657, 685 (1989). And even outside of the anti-SLAPP context, "Nile 

question of actual malice goes to the jury only if there is sufficient evidence 

for the jury, by clear and convincing evidence, to reasonably infer that the 

publication was made with actual malice." Pegasus, 118 Nev. at 721-22, 57 

P.3d at 92 (emphases added). Because actual malice is a question that does 

not go to a jury unless the evidence is sufficient to meet the clear and 

convincing standard, requiring the plaintiffs evidence to meet that 

standard at the second prong of an anti-SLAPP analysis does not deny a 

plaintiff their constitutional right to a civil jury trial. Our holding in Taylor 

did not preclude a requirement that when an element of a particular claim 

requires the plaintiff to satisfy a clear and convincing evidence standard 

before the claim goes to a jury, the plaintiffs evidence at the second prong 

must satisfy that standard. In holding today that such a requirement 

exists, we do not replace the prima facie evidence standard; rather, the 

requirement that evidence of actual malice meet the clear and convincing 

standard is merely a part of the plaintiff s prima facie showing. 

6In a previous version of NRS 41.660, plaintiffs bore a clear and 

convincing burden of proof standard at the second prong. The Legislature 

amended that statute in 2015 to require only prima facie evidence. 2015 

Nev. Stat., ch. 428, § 13, at 2455. Our holding does not rewrite the statute 

to return the plaintiffs burden of proof to a clear and convincing standard; 

it merely recognizes that evidence of actual malice must meet the clear and 

convincing standard to sufficiently demonstrate with prima facie evidence 

a probability of prevailing on this type of claim. 

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Wynn failed to meet his burden under the second prong 

"[A]ctual malice is proven when a statement is published with 

knowledge that it was false or with reckless disregard for its veracity." 

Pegasus, 118 Nev. at 722, 57 P.3d at 92. "Reckless disregard for the truth 

may be found when the 'defendant entertained serious doubts as to the 

truth of the statement. but published it anyway." Id. (quoting Posadas v. 

Cit,y of Reno, 109 Nev. 448, 454, 851 P.2d 438, 443 (1993)). 

This court has routinely looked to California courts for guidance 

in the area of anti-SLAPP law. Coker v. Sassone, 135 Nev. 8, 11, 432 P.3d 

746, 749 (2019). California courts treat this prong as they do a motion for 

summary judgment; thus, under comparable Nevada law regarding motions 

for summary judgment, "the evidence, and any reasonable inferences drawn 

from it, must be viewed in [the] light most favorable to the nonmoving 

party." Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 

(2005).7 Here, even when the evidence is considered in the light most 

favorable to him, Wynn has failed to establish actual malice by sufficient 

evidence to sustain a favorable verdict. His attempts to establish AP 

Respondents' knowledge of falsity or reckless disregard for the veracity of 

the complaint fall short of the heightened clear and convincing standard. 

See Gruber v. Baker, 20 Nev. 453, 477, 23 P. 858, 865 (1890) (describing 

7We note that prior to 2013, NRS 41.660 required the district court to 

treat a special motion to dismiss as a motion for summary judgment. See 

2013 Nev. Stat., ch. 176, § 3, at 623. Though the Legislature removed this 

language in 2013, subsequent amendments in 2015 restructured the statute 

in a way that once again tracks the procedural standards that apply to a 

motion for summary judgment. See Coker, 135 Nev. at 10, 432 P.3d at 748 

(recognizing that "[a]s amended, the special motion to dismiss again 

functions like a summary judgment motion procedurally"). 

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clear and convincing evidence as satisfactory proof that is "so strong and 

cogent as to satisfy the mind and conscience of a common man"). 

Similar to his arguments under prong one, Wynn argues that 

the Chicago complaint was implausible and points to the failure by AP 

Respondents to investigate further before publishing as evidence of actual 

malice. Again, while the complaint contained unusual elements, that does 

not mean that the gist of the allegations reported by AP Respondents—that 

Wynn sexually assaulted a woman in Chicago in the 1970s—was untrue or 

that AP Respondents should have held serious doubt about those 

allegations. As explained, because all identifying information in the 

complaint was redacted, it was not possible to meaningfully investigate 

further as long as that information was unknown. Wynn again points to 

Garcia Cano's text describing the complaint as "crazy" to establish her 

subjective doubt. But calling the complaint "crazy" is not clear and 

convincing evidence that Garcia Cano believed it to be false or that she 

recklessly disregarded whether it was true.8 Wynn also attempts to 

establish reckless disregard by highlighting AP Respondents' motivation to 

publish the story quickly. But news organizations often have a motivation 

to publish stories before their competitors, and in the absence of serious 

doubt regarding the veracity of the statement, such a desire does not 

8Looking at Wynn's evidence in the light most favorable to him does 

not require us to assume that by "crazy" Garcia Cano meant "not believable" 

or "unreliable." A more reasonable inference from her characterization is 

that she believed the complaint to be "shocking," "disturbing," or, as Garcia 

Cano put it in her testimony, "explosive and impactful." 

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establish a reckless disregard for the truth." Pegasus, 118 Nev. at 722, 57 

P.3d at 92. 

This evidence would not be sufficient for a jury to find, by clear 

and convincing evidence, that AP Respondents published the story with 

knowledge that it was false or with reckless disregard for its truth.1° 

Because Wynn did not produce sufficient evidence of actual malice, he failed 

to establish with prima facie evidence a probability of prevailing on his 

claim, requiring dismissal. 

CONCLUSION 

Nevada's anti-SLAPP statutes were designed to limit precisely 

the type of claim at issue here, which involves a news organization 

publishing an article in a good faith effort to inform their readers regarding 

an issue of clear public interest. AP Respondents met their burden under 

the first prong to establish, by a preponderance of the evidence, that their 

article was a good faith communication in furtherance of the right to free 

speech in direct connection with an issue of public concern. Wynn, on the 

other hand, did not establish with prima facie evidence a probability of 

prevailing on the merits of his defamation claim because he failed to meet 

the clear and convincing evidence standard under the second prong that is 

9At most, the evidence shows that AP Respondents rnay have held 

some doubt as to the veracity of the complaint. But that is not enough to 

meet the standard; the defendant must hold serious doubt. See Wynn v. 

Smith, 117 Nev. 6, 17, 16 P.3d 424, 431 (2001) (reversing a jury verdict 

finding actual malice because the jury instructions omitted "serious" before 

"doubt," leading the jury to apply a lower standard). 

"Wynn points to some additional evidence of actual malice not 

discussed in this opinion, but we are not convinced that it is sufficient to 

meet his burden under this prong. 

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arraguirre 

J. 

applicable to his public figure defamation claim. We therefore affirm the 

district court's order granting the renewed special motion to dismiss the 

complaint. 

We concur: 

Herndon 

Osc, J. 

Lee 

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