First District Court Dismissed 7 of 8 Charges in Gilman v. Toll

On April 9th, 2018, The Honorable James E. Wilson Jr. of the First District Court dismissed 7 of 8 charges in Gilman v. Toll. In his ruling, Judge Wilson dismissed the arguments of Lance Gilman who hoped to prove that Mr. Toll lied and maliciously knew he was lying about the facts of 8 articles written in the Teller over the course of 2017. On the Count not dismissed, Judge Wilson allowed Gilman to seek limited discovery to help him prove Mr. Toll knew he was lying when he accused Gilman of not living in a trailer behind his brothel.

The burden of proof now shifts to Mr. Gilman to prove that Sam Toll maliciously lied when he wrote the potentially defaming prose and that he knew the prose was a lie and posted it to purposefully damage Mr. Gilman.

Mr. Gilman will be granted limited discovery relating to the lying. This discovery is “limited solely to information as to whether Toll knew the resident communications were false or whether he acted with a high degree of awareness of the probable falsity of the statement or had serious doubts as to the publication’s truth.”

Some Background

On December 7th, 2017, Brothel Owner, TRIC Executive, Blockchains Government Affairs Representative and Storey County Commissioner Lance Gilman sued The Storey Teller Editor Sam Toll for Defamation Per Se. Sam Toll filed an anti-SLAPP (Strategic Lawsuit Against Public Participation) special motion to dismiss. which Gilman opposed.

In documents filed with the court, Mr. Gilman complained that “virtually every article” written in The Teller contained malicious attacks against Mr. Gilman’s character. In fact, 40 of the 247 posts mention Gilman and 21 of them are critical of his behaviour in office, 16% and 11% respectively. He went on to accuse Mr. Toll and the Teller of not operating The Teller as a good faith communication in furtherance of the right to petition of the right to free speech in direct connection with an issue of public concern (NRS 41.637(1)-(4)).

Matters of Public Concern

In deciding the case, Judge Wilson used the criteria to determine if the case was anti-SLAPP worthy including:

• The Matters are of Public Concern
  • “public interest” does not equate with mere curiosity;
  • A matter of public interest should be something of concern to a substantial number of people and a relatively small specific audience is not a matter of public interest
  • There should be a degree of closeness between the challenged statement and the asserted public interest; the assertion of a broad amorphous public interest is not sufficient;
  • 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
  • A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people

Further, Judge Wilson considered the fact that “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” means any:

• Communication that is aimed at procuring any governmental or electoral action, result or outcome;
• Communication of information or a complaint to a Legislator, officer or employee of the Federal Government, this state or a political subdivision of this state, regarding a matter reasonably of concern to the respective governmental entity;
• Written or oral statement made in direct connection with an issue under consideration by a legislative, executive or judicial body, or any other official proceeding authorized by law; or
• Communication made in direct connection with an issue of public interest in a place open to the public or in a public forum; and which is truthful or is made without knowledge of its falsehood.

He concluded that all 8 matters were of public concern.

Are Taxpayer Waste, Abuse and Mismanagement A Matter Of Public Interest?

Unsurprisingly, Mr. Gilman argued that articles published by The Teller are not matters of public interest and should, therefore, are not be protected by the First Amendment.

When discussing the article written on Storey County Taxpayers sending Gilman and Hess to attend the presidential Inauguration, Justice Wilson concluded (on page 34 of the pdf file attached below) that “The focus of Toll’s communication was whether the use of tax dollars for the trip was legitimate and in the best interests of Storey County taxpayers. The Court concludes Toll’s statement was in the public interest and not a mere effort to gather ammunition for another round of private controversy. This guiding principle weighs in favor of finding the communication and the statement was made in direct connection with an issue of public interest.”

 

What Happens Next?

Since the court dismissed 7 of 8 charges in Gilman v. Toll, the burden of proof shifts to Mr. Gilman to prove on the remaining count that Mr. Toll lied when he wrote the potentially defaming article. Mr. Gilman may conduct the limited discovery described above which must be concluded by May 11th. Mr. Gilman will then have until May 25th to file and serve a supplemental opposition to the anti-SLAPP motion. Mr. Toll will have until June 8th to file a supplemental reply and will request to submit the matter for decision on or before June 8th, 2018.

Stay Tuned …

Order Granting Anti-Slapp Motion in Part, Allowing Limited Discovery, Staying