Defamation of Steve Wynn

Alright, hold on! Before you think that this is just another blog post or news article about the Steve Wynn v. Joe Francis sage, it’s not! So don’t stop reading! However, if you’ve been living in a cave for the last two weeks, you can read about the lawsuit here, here and here.

Our friends over at 360Vegas reported on this, but weren’t sure why/how you could slander Steve Wynn, especially when the slanderor was the Girls Gone Wild reprobate, Joe Francis. This got me to thinking, I bet a lot of VLO-ers are wondering the same thing. Hey, I’m a lawyer, I should answer that for them!

 The Facts:

Let’s take a look at what happened in the case, so we’re all on the same page. Apparently back in 2007 Francis slithered out of his swamp and into the Wynn Resort in Las Vegas, NV. During his multi-day stint of gambling, booze and whores   meals, Francis racked himself up a tide little $2 million debt with the resort. Understandably, the Wynn corporation was none too happy about the outstanding balance and subsequently sued to collect their money, in 2008. It was at one of these hearings when the Girls Gone Wild guy (see that triple alliteration there?) jumped out of his chair to yelled to the Judge, something along the lines of Steve Wynn was trying to kill him over the past due debt.

This allegation so shocked and amazed the TMZ reporter in the courtroom that it caused him to ask Francis to once again repeat the statement, so Francis did, outside of the courthouse. He also repeated it to Good Morning America a day or two later. The details of the allegation are that Steve Wynn was emailing music mogul Quincy Jones stating that Wynn was going to hit Francis over the head with a shovel and bury him in the desert. Francis apparently believes Wynn to be tied to the criminal syndicate Genovese family and used that to buttress his “bury in the desert” claim.

The jury in this case did not believe Francis had any validity to his claim of being whacked and found in favor of Wynn, to the tune of $20 million! Joe Francis is expected to appeal the jury decision on two different matters I’m not going to go into here.

The Law (Generically)

Every state is going to have its own criteria for what does and does not constitute defamation. Therefore, the following information is the generic form of defamation, not necessarily the exact requirements of California and its defamation statutes.

The first thing we need to establish in regards to defamation is that there are two forms of it: Slander and Libel. Slander is verbal defamation and Libel is written defamation.

But what exactly is defamation?

The second thing to establish is the definition of defamation. Defamation, at common law, consists of five elements:

  1. A Defamatory Statement: The statement made by the Defendant (Joe Francis) is false and tends to harm the Plaintiff’s reputation (Steve Wynn) in a respectable segment of the community;
  2. About the Plaintiff: meaning that the statement is of or concerning, the Plaintiff;
  3. By Publication: this simply means communicated to another person, capable of understanding the statement;
  4. Which is False: the degree to which it is false is the only real salient point;
  5. And Causes Harm: this element is a bit of a sticky-wicket, as “special harm” is required in slander (not libel) cases. Those four special harms, only one of which must be proved by the Plaintiff, are: A) Statements made which reflect adversely on Plaintiff’s business/profession, B) Imputes a loathsome disease, C) A moral turpitude crime or D) Serious sexual misconduct.

Alright, before I move on to the Legal Analysis portion, I should let you know there is a lot more to defamation than what I have included here. There is Slander Per Se, Inducement/Colloquium, General/Special Damages, Media/Non-Media Defendants and, of course, Defenses/Privileges for Defendants. This is not meant to be a law review article, I’m simply touching upon slander, Steve Wynn and Joe Francis, for you, my loving law hungry gaming fans!

Legal Analysis

Now we simply go back, look at the 5 elements and plug our facts into element to see if we can establish defamation against Steve Wynn.

Defamatory Statement

Was Joe Francis’ comment alleging Steve Wynn was going to hit him over the head with a shovel and bury him (Francis) in the desert, true or false? Well, we know now that it was false, but this is almost always the issue at hand in a defamation lawsuit. One party (the Plaintiff) says no, while the other party says yes. The problem for Francis was that he had no emails to show the jury that his allegations against Wynn were true. Additionally, did the false statement harm Plaintiff’s reputation in a respectable segment of the community?

Had I been asked this question prior to learning more about the case, I would have been inclined to respond in the negative. However, an aspect of the community I had not considered (since I don’t live in Las Vegas, nor work in the highly regulated profession of gaming) was Nevada Gaming Control (NGC). This organization oversees all gaming activity in the state and, most importantly, has licensing responsibilities. Its main purpose was, and  is still today, to maintain the legitimacy and respectability of an honest game. We all well know the storied past of Las Vegas and its connection to the Mob. The NGC was established to root out the mobsters and ensure that legitimate business interests are owning/operating the casinos within the state’s borders. When you level an allegation against a highly successful casino owner, like Steve Wynn, that he’s “Mobbed Up” (my words, not Francis) by insinuating he’s connected to the Genovese family, you’re making very serious charges. Furthermore, if you partner that Genovese comment with an action which has been known to occur to people who have wronged a casino (ahem, buried in the desert), that will be noticed by organizations like the NGC.

So in that regard, yes, I would concur that Joe Francis statement did damage Wynn’s reputation.

About the Plaintiff

This comment was clearly “of and concerning” the Plaintiff, Steve Wynn. This element was not an issue in dispute during the defamation case.

Publication

The publication occurred three times, once within a privileged setting (the courtroom, to a judge) and twice NOT within a privileged setting (TMZ & Good Morning America). Obviously the comment was capable of being understood by a third party, because both of these two media organizations wanted to interview Francis due to its salacious undertones.

False

This comment was made solely by Francis and was never substantiated. There were allegedly emails from Wynn, but Francis could never produce them and the person Francis said had the emails (Quincy Jones) admitted in court to never having seen any emails to him from Wynn. The fault of this false statement was 100% at the feet of Joe Francis.

Special Harm

Going back to our 4 different forms of special harm, here we look to the category of “reflecting adversely on Plaintiff’s business/profession”. If Steve Wynn is professionally connected to the Genovese family and/or threatening to kill people and bury them in the desert, this certainly would reflecting poorly upon Steve Wynn, his resort and his profession, at least in the eyes of the organization which licenses him and his casino, the Nevada Gaming Control board.

Conclusion

For the foregoing reasons, it does appear clear why the jury would find Joe Francis liable to Steve Wynn for defamation, specifically slander. In a profession like the gaming industry, which is highly regulated due to it’s storied past, making comments like the ones Joe Francis made would surely cause regulators to scrutinize Steve Wynn and his company. This scrutiny was the byproduct of false allegations and would surely cause great distress, particularly when the comments are unfounded, salacious and untrue.

Legal Disclaimer: Nothing in the blog post is intended to be used as an alternative to legal services provided by an attorney in your home state. This post does not create an attorney-client relationship between any party, individual, organization or reader and Tony Snyder, Jason Gillikin or Vice Lounge Online. If you have need for an attorney, please consult your nearest phone book, search engine or business card pinned to a corkboard. This post is for entertainment purposes only.

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About tony

Tony is a solo practice attorney in Mid-Michigan with an emphasis on Estate Planning, Criminal Defense and Business Law. He also enjoys Davidoff cigars, Las Vegas and Bacardi rum.