By Howard McCarley

It’s no accident that the authors of the U.S. Constitution singled out one profession for special protection. The language of the First Amendment, while simple, is sweeping in scope: 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The framers of the Bill of Rights recognized that the free exchange of views and ideas and the provision of protection for those exchanges was essential to the maintenance of a free society. At the time, ‘the press’ was rather easily defined — newspapers of various persuasions. As technology has advanced, what was traditionally viewed as ‘the press’ has undergone significant changes. 

Radio, television and the internet all have changed media roles and perceptions of what constitutes ‘the press’ — and these new mediums and platforms are not always protected by the absolute nature of the First Amendment prohibition against interference with the free exchange of ideas.  

Currently, there is a pending lawsuit filed by U.S. representative Devin Nunes seeking suppression of two separate Twitter accounts which he claims have defamed him. Closer to home, a Nevada judge very narrowly interpreted the definition of a journalist and held that a person reporting on only electronic media did not enjoy the same protections as a print journalist. Then, in December 2019, the Nevada Supreme Court ruled that “one can print in more than one way.” (The ruling followed a lower court opinion that electronic media did not constitute “printing”.) This ruling, too, is very narrow, addressing only the mechanism of printing — it still did not extend the full benefits of Nevada’s media shield law to electronic media. 

The Nunes suit against the Twitter accounts was filed by a rather deep-pocketed individual. Apparently unaware of the Streisand effect, the plaintiff created a backlash of funding toward fighting the suit — but that’s not always the case, nor should it be necessary for us to pay in order to speak our minds. In many of these cases, helpful funding does not appear, the validity of the criticism is never really assessed and the critic is silenced — even if the criticism was valid.

In a different kind of free speech case (Clark County District Court VIII Case A-17-765257-C), a Nevada judge ruled that Homeowners Associations are private entities and are thus not subject to anti-SLAPP provisions (short for strategic lawsuits against public participation, SLAPPs have become a tool for intimidating and silencing criticism through expensive, baseless legal proceedings). The ruling came despite HOAs performing many of the functions traditionally provided by municipalities and centered on a case involving questions raised by a candidate for an HOA Board about the level of expenditures and action of a (substantially) developer-controlled HOA Board. 

The parent company of the management company filed a defamation action against the candidate. The defendant asked for dismissal, arguing that homeowners association meetings constitute a “public forum” that qualify as a meeting covered by the anti-SLAPP statute (NRS 41.660) because they serve a function similar to that of a governmental body.  The judge denied the motion to dismiss, finding that the defendant “failed to meet its burden to invoke NRS 41.660”. Effectively, the decision denied that HOA meetings and processes are public forums. The court chose to ignore the precedent set by actual municipalities — and the source material for most Nevada HOA law — which clearly holds that HOAs are enjoined by anti-SLAPP provisions. 

And so they should be. Homeowner associations are prevalent in the urbanized parts of Nevada. In many ways, they are embraced by local governments as they provide a means and method to avoid costs (and tax increases) in order to provide street lighting, street landscaping, parks and hiking trails and their maintenance in new communities. Because homeowner boards and management companies act as de facto municipal agencies, they should not enjoy protections against criticism exceeding the protections afforded public agencies (and elected or appointed public officials). 

While the truth is an absolute defense, it may be a long and expensive process to be vindicated, and few want to trudge that path when just shutting up is so easy. But doing so perpetuates the loss of rights. This is wrong.

So, too, with radio, television, the internet, blogs, social media — all serve to facilitate the same thing: the free exchange of opinions and ideas about society and life. What has changed is the scope of the communications and the speed at which they occur.  As long as the statements made do not on their face display a reckless disregard for the truth, they should be permitted to stand and freely discussed.

Defenders of the Second Amendment are unconditional in their insistence that the technology advancement from muzzle-loading muskets to semi-automatic high capacity weapons did not alter the intent and application of the amendment. We must be equally diligent in protecting the rights enumerated in the First Amendment including that it apply to any technological changes since the printing press held sway as “mass communication”.  

Our rights are under attack at all levels of government, and everyone needs to be aware of and resist these attacks the freedoms we ought to enjoy.

Howard McCarley is a homeowner in Las Vegas. Prior to retirement, he had a 30-year career as a construction superintendent and project manager, and he most recently was a real estate professional.