rejecting defendant's argument that a hyperlink differs from a footnote because it is not within the document's "four corners" as "formalism that is misplaced in Internet defamation law"
How later courts described this case
- rejecting defendant's argument that a hyperlink differs from a footnote because it is not within the document's "four corners" as "formalism that is misplaced in Internet defamation law"
- “Although the Court has determined that this action must be dismissed under Rule 12(b)(6), that determination does not necessarily render moot Defendants’ motion under the Anti-SLAPP statute, because that statute provides for certain relief in the event of dismissal, including the recovery of attorney’s fees.”
- “Although the Court has determined that this action must be dismissed under Rule 12(b)(6
- describing a hyperlink as “the twenty-first century equivalent of the footnote”
Written by the judges who cited it.
The opinion
13‐4173‐cv
Adelson v. Harris
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2014
ARGUED: AUGUST 28, 2014
DECIDED: NOVEMBER 29, 2017
No. 13‐4173‐cv
SHELDON G. ADELSON,
Plaintiff‐Appellant,
v.
DAVID A. HARRIS, MARC R. STANLEY, AND NATIONAL JEWISH
DEMOCRATIC COUNCIL,
Defendants‐Appellees.
________
Appeal from the United States District Court
for the Southern District of New York.
No. 12‐cv‐06052 – J. Paul Oetken, District Judge.
________
Before: CALABRESI, RAGGI, and CHIN, Circuit Judges.
________
Plaintiff‐Appellant Sheldon Adelson appeals from the September 30,
2013 order of the United States District Court for the Southern
District of New York (Oetken, J.) dismissing his defamation suit. We
previously certified two questions to the Nevada Supreme Court.
Having received that court’s response, we affirm.
James R. Ferguson, Mayer Brown
LLP, Chicago, IL (Michele L.
Odorizzi, Demetrios G. Metropoulos,
Mayer Brown LLP, Chicago, IL;
Andrew L. Frey, Mayer Brown LLP,
New York, NY; L. Lin Wood and
Jonathan D. Grunberg, Wood,
Hernacki & Evans, LLC, Atlanta, GA,
on the briefs), for Plaintiff‐Appellant.
Lee Levine (Seth D. Berlin, Gayle C.
Sproul, Chad R. Bowman, Rachel F.
Strom, on the briefs), Levine Sullivan
Koch & Schulz, LLP, New York, NY,
for Defendants‐Appellees.
PER CURIAM:
Familiarity with the facts of this case, as set forth in this
court’s decision in Adelson v. Harris, 774 F.3d 803 (2d Cir. 2014), is
assumed. This case involves defamation claims brought by
Appellant Sheldon Adelson against Appellees National Jewish
Democratic Council, its Chair, Marc Stanley, and its President and
CEO, David Harris. Appellant’s claim of defamation is based on
Appellees’ 2012 online petition urging then presidential candidate
Mitt Romney to reject Appellant’s financial contributions because
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Appellant’s money came from his Chinese casinos and was “dirty”
and “tainted,” and because Appellant “’personally approved’ of
prostitution in his [Chinese] casinos.” J.A. 38 (emphasis omitted).
Using a hyperlink, the petition attributed these “facts” to an
Associated Press (“AP”) story. Id.
The United States District Court for the Southern District of
New York dismissed Appellant’s action under Rule 12(b)(6) and
applied the Nevada anti‐SLAPP statute to award attorney’s fees and
costs to Appellees. See Adelson v. Harris, 973 F. Supp. 2d 467
(S.D.N.Y. 2013). On appeal, we affirmed the district court in part, but
certified two questions to the Nevada Supreme Court:
(1) whether a hyperlink to source material about judicial
proceedings suffices in an online petition for purposes of
applying Nevada’s common law fair report privilege; and (2)
whether the Nevada anti‐SLAPP statute, as it existed prior to
the amendments in 2013, covered speech that seeks to
influence an election but that is not addressed to a
government agency.
Adelson, 774 F.3d at 811.
The Nevada Supreme Court accepted the certified questions
in 2015, and on September 27, 2017, issued its answers. Adelson v.
Harris, 402 P.3d 665 (Nev. 2017). As to the first question, the court
held that “a hyperlink to source material about a judicial proceeding
may suffice as a report within the common law fair report
privilege,” and that “the online petition, as it existed when
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[Appellant’s] complaint was filed, fell within the purview of
Nevada’s fair report privilege.” Id. at 666, 670.
As to the second question, the court directed us to its recently
issued opinion Delucchi v. Songer, 396 P.3d 826 (Nev. 2017), and
explained that, pursuant to Delucchi, Nevada’s anti‐SLAPP statute
covers “[c]ommunication that is aimed at procuring any
governmental or electoral action, result or outcome . . . which is
truthful or is made without knowledge of its falsehood, even if that
communication was not addressed to a government agency.” Id. at
666, 670 (internal quotation marks and citations omitted).
Following receipt of the Nevada Supreme Court’s response,
we ordered the parties to submit letter briefs addressing the import
of that response to the resolution of this appeal. In response,
Appellant urged us to revive his defamation claim, arguing (1) that
his claim also rests on the non‐privileged statement that he “used
funds from prostitution to finance his campaign contributions,” D.I.
177 at 3‐6 (emphasis omitted); (2) that the district court erred in
holding, as a matter of law, that Appellees made the statements
without knowledge of their falsehood; and (3) that he should have
been allowed additional discovery on the anti‐SLAPP statute’s
scienter requirement.
The district court, applying Nevada law, dismissed
Appellant’s claim because Appellees’ statements rested in part on
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opinion and were otherwise protected by the fair report privilege.
Adelson, 973 F. Supp. 2d at 471. We have already affirmed that ruling
as it pertained to statements of opinion. Adelson, 774 F.3d at 807.
Nevada law grants “absolute immunity from defamation . . .
to the news media and the general public to report newsworthy
events in judicial proceedings.” Sahara Gaming Corp. v. Culinary
Workers Union Local 226, 115 Nev. 212, 215 (1999). The contested
allegations―that Appellant personally approved of
prostitution―came from an AP story, describing a sworn declaration
made in a lawsuit by an ex‐employee against Appellant’s company.
In our prior opinion, we explained that these statements, “if
unprivileged,” may be actionable. Adelson, 774 F.3d at 807. So we
asked the Nevada Supreme Court, by certification, whether the
hyperlinks used in the petition sufficiently attributed the statements
to the AP story to invoke the fair report privilege. See id. at 808. That
court’s affirmative response resolves the issue. The fair report
privilege applies and the district court’s dismissal of Appellant’s
defamation claim was correct.
The district court also applied Nevada’s anti‐SLAPP statute to
Appellant’s case. Appellant argues that the district court erred in its
conclusion that, as a matter of law, the challenged statements were
made “without knowledge of falsehood,” as required by the statute.
D.I. 177 at 7 (internal quotation marks omitted). We did not
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explicitly address this ruling in our prior opinion. But, when we
explained that the district court properly exercised its discretion in
deciding not to allow discovery on the topic, we implicitly approved
of the district court’s determination that, as a matter of law,
Appellees acted in good faith. See Adelson, 774 F.3d at 809 (“[T]he
discovery sought was not reasonably calculated to create a material
issue of fact . . . .”).
In any event, we agree with the district court: Appellant failed
to allege “knowledge of falsity, much less facts to support such a
conclusion.” Adelson, 973 F. Supp. 2d at 503. Thus, we affirm both
the district court’s denial of Appellant’s request for additional
discovery and the district court’s application of the anti‐SLAPP
statute to this case.
For these reasons, the district court’s dismissal of Appellant’s
case is AFFIRMED.
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