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The truth will out

The truth will out

Over the years, angry politicians, entertainers and bankers have tried to silence Nevada journalists — thankfully, with little success

“Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right,” the people of Nevada declared in their 1864 constitution. (Punctuation in the hastily drafted document is spotty.)

It sounded good on paper, at least. In the century and a half since, journalists have been hauled into Nevada courts and charged with rights-abuse for covering everything from public corruption to canned beans. Here are five noteworthy — and sometimes complicated — cases that, thankfully, affirmed freedom of the press.


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The tale of the teenage editor: Thompson v. Powning (1880) A few years after the Civil War, a 16-year-old orphan named Christopher Columbus Powning voyaged from Wisconsin to the new town of Reno. There, according to the Historic Reno Preservation Society, Powning became editor of the Nevada State Journal while still in his teens. A few years later, he was the defendant in one of the first libel cases to reach the Nevada Supreme Court.

The case arose when the Journal reported that one Deacon Parkinson had administered a “tongue-lashing” to William Thompson, a former state senator from Washoe. The deacon, according to the Journal, had castigated Thompson as a bribe-taking, gold-stealing “scoundrel,” alongside “many other sweet reflections on the gentleman.” 

Thompson sued the Journal, demanding $10,000 to compensate for the damage to his public standing. The Truckee Republican — like the Journal, evidently not a fan of the ex-senator — remarked of his reputation: “Outsiders think it worth about fifteen cents.”

For his part, Powning dismissed the offending article as featherweight gossip that nobody took seriously. Indeed, Powning wrote that he himself disbelieved it. To keep readers fully informed, the Journal reprinted the tongue-lashing item as well as Thompson’s libel complaint. Thompson then amended his suit to charge a new libel: the publication of his complaint.

After Powning won at trial, Thompson appealed to the Nevada Supreme Court. The justices reversed the judgment and ordered a new trial because of flawed jury instructions. (What happened after that — whether the case got retried, settled, or dropped — is unknown.) In analyzing the issues, the state supreme court laid down a couple of rules of enduring importance.

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The justices rejected Powning’s defense that, in their words, he had published the Thompson tidbit “as a matter of gossip, without his knowing, or inquiring, whether it was true or false. It was considered as a sort of joke that nobody would pay any attention to, etc.” Editors, the justices admonished, “are responsible for whatever appears in their paper.”

But the court handed Powning a victory in concluding that the Journal hadn’t libeled Thompson anew by publishing his court complaint. “The public has a right to know what takes place in a court of justice,” the justices said, so newspapers are free to publish details of judicial goings-on “unless the proceedings are of an immoral, blasphemous, or indecent character.” Christopher Columbus Powning had struck a blow for freedom of the press.


You can’t erase the past: Montesano v. Donrey Media Group (1983)

Under the “right to be forgotten,” Europeans can petition courts to disinfect their online reputations. Judges will order search engines to delete links to damning but accurate websites if the material is “no longer relevant ... in the light of the time” elapsed since a crime, scandal or other untoward incident.

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American courts haven’t been so hospitable to those who want to move beyond the past, as Ronald K. Montesano discovered.

As a teen in the mid-1950s, Montesano had a couple of brushes with the law. In 1955, when he was 17, he was a passenger in a car that struck a police officer on a motorcycle. The cop was killed, and Montesano ran off. Though he wasn’t the driver, fleeing the scene was enough to land Montesano in the State Industrial School at Elko for several weeks. Then at 19, he was convicted of felony marijuana possession and sentenced to two years in prison.

Flash forward to 1978. Another officer got killed, this one shot by a suspect. The Las Vegas Review-Journal summarized earlier incidents in which local police had died in the line of duty. The paper recounted the hit-and-run from 1955, identified Montesano, and noted his subsequent marijuana conviction.

Montesano sued for invasion of privacy. He argued, in the Nevada Supreme Court’s words, that he had “returned to the private, lawful and unexciting life led by the great bulk of the community.” Accordingly, “the facts and circumstances surrounding his crimes and his identity are no longer matters of legitimate public concern.”

Montesano was a sympathetic plaintiff. He had played a minor role in a crime more than two decades earlier. The 1955 hit-and-run had only tangential relevance to the 1978 shooting murder, and his subsequent pot conviction had no relevance at all. All in all, the RJ mention seemed gratuitous. Had Montesano won, though, anybody writing history would have to hesitate before using public records to chronicle past misdeeds.

The district court dismissed the case before trial. On appeal, two justices said the lower court had erred; Montesano deserved his day in court. One justice stressed the public interest in helping juvenile offenders become law-abiding citizens, and suggested that wrongdoing of Montesano’s type ought to fade from public memory: “Major incidents may bring lasting notoriety to some criminals, but most criminal incidents are of public interest for a short while only, and then slip into obscurity.” In cases of the latter type, “publication of the ex-offender’s name serves no useful purpose.”

But the majority of Nevada Supreme Court justices held that Montesano didn’t have a valid case. “The killing of police officers is a subject of grave public interest,” the justices said, and the history of earlier fatalities was of “equal legitimate public interest.” Although the paper could have omitted Montesano’s name, using it “contributed constructively to the impact of the article” by adding “specificity and credibility.” A reasonable juror, the court concluded, was bound to conclude that the article, including Montesano’s name, was a matter of “legitimate public concern.” Bottom line: Nevadans can’t escape the past.


The mad Midnight Idol: Newton v. NBC (1991)In 1980, NBC News reported that Wayne Newton had connections to mobsters —connections, according to the network, that he hadn’t fully disclosed to gaming regulators as he tried to buy the Aladdin Resort and Casino. Newton sued NBC for libel.

NBC’s lawyer, First Amendment superstar Floyd Abrams, figured the Las Vegas trial was unwinnable, given Newton’s stature among locals. He was right. After a 37-day trial, the jury ruled for Newton and awarded him what at the time was the largest libel judgment ever against an American press outlet: $22.8 million. The judge reduced it to a still-whopping $5.2 million.

Abrams headed to the U.S. Court of Appeals for the Ninth Circuit. There, he argued that the court must scrutinize the jurors’ factual conclusions with particular care, given their all-but-certain bias in favor of a local celebrity.

The Ninth Circuit agreed. As a key precedent, the court discussed the landmark 1964 libel case New York Times v. Sullivan. At issue was a Times ad that charged Alabama officials with unleashing a “wave of terror” against Dr. Martin Luther King Jr. and other nonviolent civil rights demonstrators. An official from Montgomery, Alabama, sued the Times for libel, and a local jury awarded him $500,000. The Supreme Court reversed the judgment and expanded the scope of First Amendment protections in libel cases.

Unflatteringly, Ninth Circuit judges likened the segregationists of Alabama to the Wayne Newtonians of Las Vegas. Each case, the court said, raised “the danger that First Amendment values will be subverted by a local jury biased in favor of a prominent local public figure against an alien speaker who criticizes that local hero.” The court concluded that the First Amendment protected NBC’s coverage.

Despite his victory on appeal, Floyd Abrams did lose the largest libel case ever in Las Vegas. In his memoir Speaking Freely, Abrams makes no secret of his distaste for the city. His view, he says, matches that of the writer Otto Friedrich: Las Vegas “is what hell might be like if hell had been planned and built by New York gangsters.”


Shoulda bean there: Pegasus v. Reno Newspapers (2002)In 1999, the Reno Gazette-Journal launched an all-out crusade against a culinary shortcut: the use of packaged ingredients in Mexican restaurants. After publishing several articles and reviews on the theme, the paper reviewed a Sparks eatery, Salsa Dave’s. The reviewer charged that all the food “came out of some sort of package.” As she was paying her lunch check, she added, she spied a can of beans in the kitchen.

Salsa Dave’s sued for libel. The owner testified that he faithfully served fresh beans, not canned ones. Yes, they kept a few cans on hand for emergencies — if, say, the kitchen ran out of fresh beans on an unexpectedly busy night. But they would never serve canned beans at lunch, when the reviewer had dined there. Salsa Dave’s further maintained that the emergency cans were stored on a shelf that couldn’t be seen from anyplace near the cash register.

The judge concluded that Salsa Dave’s hadn’t been libeled under any reasonable interpretation of the evidence, so no trial was necessary. On appeal, the Nevada Supreme Court agreed. “There is no such thing as a false idea,” the justices said, quoting the U.S. Supreme Court. The reviewer’s statement that everything came out of a package expressed not a fact but an idea — the idea that everything tasted as if it came out of a package. No libel there.

The assertion that the reviewer had seen a can of beans “presents a closer issue,” the court said. In the view of one justice, the bean-spotting claim was “not an opinion, but a cold hard fact that gives credibility to the harsh opinions stated.” Jurors should hear testimony from the restaurant owner and the reviewer, evaluate the conflicting accounts, and decide who was telling the truth.

But the court’s majority disagreed. Parsing closely, those justices explained that the review didn’t explicitly say that Salsa Dave’s served canned beans, only that there were canned beans in the kitchen — and that was true, whether the reviewer saw them or not.

Bad news for restaurants; good news for restaurant critics. Assessing Pegasus and similar cases from across the country, the UMKC Law Review concluded that a restaurateur’s odds of winning a libel suit against a hostile reviewer “are very bleak indeed.”


Chilling effect: Aspen Financial Services v. Eighth Judicial District Court (2013)In 2011, Dana Gentry, a reporter for KSNV Channel 3 in Las Vegas, faced every journalist’s nightmare: a subpoena.  

Under Nevada law, journalists can refuse to testify about information they obtain in their “professional capacity.” It’s among the most comprehensive shield laws in the country, but lawyers for Aspen Financial Services discovered a potential loophole. Although Gentry had produced damaging stories about the company, Aspen’s lawyers said they didn’t want to ask about her reporting. Instead, they wanted to interrogate her about relationships with people suing Aspen. (Gentry was a witness, not a party to the suit.) In particular, they wanted to plumb the motivations of her coverage by finding out if she was being bribed, extorted or both.

If this was a loophole, it was a gaping one. Anyone indignant over news coverage could subpoena reporters, allege that they might be on the take, and start rummaging through bank records. Facing such a threat to family privacy, some journalists might steer clear of exposés involving litigious figures.

For the sake of First Amendment principle, Gentry was willing to go to jail. Fortunately for her, though, the Nevada Supreme Court saw through Aspen’s gambit. Maybe the company wasn’t seeking notes or testimony about her coverage, the court said, but that coverage was the sole reason for the subpoena: Aspen was trying “to affirm its suspicions about Gentry’s motivation for producing those news stories.” If Gentry hadn’t written about Aspen, Aspen wouldn’t have subpoenaed her. Accordingly, the shield law applied.

Those seeking judicial weapons for intimidating Nevada journalists will have to look elsewhere.