Mixed Nevada S. Ct. Anti-SLAPP Decision as to #TheyLied Sexual Assault Defamation Claim Brought by Nickolas Carter (Backstreet Boys)

From Ruth v. Carter, decided Tuesday by the Nevada Supreme Court:

Appellant Shannon Ruth sued respondent Nickolas Carter for sexual battery, intentional infliction of emotional distress, and negligent infliction of emotional distress, alleging that Carter sexually assaulted Ruth following a Backstreet Boys concert in 2001, and that Carter had also sexually assaulted several other women. Carter asserted counterclaims for defamation [and related torts] …. Carter’s counterclaims were based on statements by Ruth that generally alleged that Carter sexually assaulted Ruth and that Carter is a “serial” rapist and abuser of “multiple people.”

Ruth moved to dismiss Carter’s counterclaims under Nevada’s anti-SLAPP statutes, which require a two-prong analysis:

First, the district court must determine whether the defendant has established, by a preponderance of the evidence, that the plaintiff’s “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.” If the defendant satisfies the first prong, the burden shifts to the plaintiff under the second prong to show “with prima facie evidence a probability of prevailing on the claim.” Only a claim that satisfies both prongs of the anti-SLAPP statute—i.e., a claim based on a good faith communication and that lacks minimal merit—is subject to dismissal. Because Ruth filed the anti-SLAPP motion to dismiss Carter’s counterclaims, Carter is the plaintiff and Ruth is the defendant for purposes of the anti-SLAPP analysis.

The court concluded that Ruth’s statements accusing Carter of assaulting her weren’t subject to dismissal under the anti-SLAPP statute (so that Carter’s defamation case as to those matters can go forward):

The [key] issue is whether Ruth established, by a preponderance of the evidence, that the communications were made in good faith—that the communications were “truthful or made without knowledge of [their] falsehood.” Rather than looking to the individual words, we ask “‘whether a preponderance of the evidence demonstrates that the gist of the story, or the portion of the story that carries the sting of the [statement], is true.” …

Ruth provided an affidavit stating that “[t]he allegations in [Ruth's] Complaint in this action are true and correct to [Ruth's] own knowledge and experience.” … [W]hen, as here, there is contradictory evidence in the record, we must consider that evidence in determining whether the defendant demonstrated good faith.

Carter produced affidavits from multiple witnesses that, if believed, would establish that the incident of Carter assaulting Ruth as Ruth described it did not and could not have occurred. For example, although Ruth stated that she met Carter in an autograph line at the venue after the subject Backstreet Boys concert, Carter produced affidavits from several witnesses who personally observed the Backstreet Boys and Carter leave the venue right after the concert and stated that there were no autograph lines after the concert.

Carter also produced affidavits from members of the Backstreet Boys’ security detail stating that the band, including Carter, performed a “quick out” following the subject concert, “which meant that the band would rush to their individual tour buses and leave the [concert venue],” and that “it would be impossible for any fan to be alone with any of the band members on their tour bus” because of security protocols. Carter also produced an affidavit from Ruth’s close friend at the time, who had discussed the subject concert with Ruth both before and shortly after it occurred, stating that she believed that Ruth did not even attend the subject concert.

Carter also produced evidence of prior inconsistent communications by Ruth. For example, in October 2019, Ruth wrote a private direct message to a woman whom Ruth befriended online in which Ruth stated, “I didn’t get hurt by Nick like [others] did. He hurt me by saying really mean things and bullying me. I feel like I don’t really have a right to talk about it or be in the fight because what [others] went through is much worse.”

Carter also noted inconsistencies in Ruth’s various reports to the Tacoma Police Department, including that in one of Ruth’s initial calls to the police, Ruth reported that Carter only grabbed her arm, and no other physical activity occurred. Finally, Carter provided his own affidavit, denying that he assaulted Ruth and stating that the band engaged in a “quick out” after the show and that Carter’s security guard would not have allowed Ruth, or any other fan, to board the tour bus during the subject tour.

We conclude that Carter’s evidence, if believed, establishes that Carter did not sexually assault Ruth following the Backstreet Boys concert in 2001, such that Ruth’s statements describing such an incident would perforce be made with knowledge of their falsity. Cf. Taylor v. Colon (Nev. 2020) (observing that “contradictory evidence in the record may undermine a defendant’s sworn declaration establishing good faith”); cf. also Chastain v. Hodgdon (D. Kan. 2016) (applying a different procedural standard but explaining that “[i]f defendant knew that the events were false, and nonetheless wrote the detailed narrative describing exactly how plaintiff sexually assaulted … her when it actually never occurred, it is axiomatic that she wrote the narrative with actual malice, or actual knowledge that it was false”). Ruth discounts Carter’s evidence, arguing that because only Ruth—and none of Carter’s witnesses—can speak to Ruth’s knowledge of the truth or falsity of her statements, none of Carter’s evidence contradicts or overcomes Ruth’s affidavit. But this argument ignores the relevant caselaw. We therefore conclude that Ruth did not satisfy her burden under prong one with respect to the statements that Carter sexually assaulted Ruth.

But the court concluded that the defamation lawsuit should be dismissed as to the statements about alleged rapes of others:

Ruth did, however, satisfy her burden to demonstrate by a preponderance of the evidence that her statements that Carter is a “known” and “serial” “rapist and abuser of multiple people” were truthful or made without knowledge of falsity. Carter’s evidence primarily focuses on the 2001 concert, which does not directly pertain to Ruth’s knowledge when stating that Carter has raped or abused other people. In fact, some of Carter’s evidence may support that Ruth believed that Carter sexually assaulted others. It is also undisputed, and Carter’s evidence corroborates, that other women had accused Carter of sexually assaulting them before Ruth made the statements at issue. On balance, Carter’s evidence does not adequately contradict or overcome Ruth’s affidavit of good faith with respect to this category of statements….

[And u]nder the second prong[,] … we conclude that Carter failed to establish actual malice by clear and convincing evidence to sustain a favorable verdict. “[A]ctual malice is proven when a statement is published with knowledge that it was false or with reckless disregard for its veracity.” … Although Carter provided evidence casting doubt on the veracity of other women’s assault allegations and provided witness testimony supporting that Ruth was at least tangentially involved in a plot to extort and defame Carter, this evidence on its own does not clearly and convincingly show actual malice. Further, as discussed supra, Carter also produced evidence suggesting that Ruth did believe the truth of her statements….

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