Blogging and Defamation in Nevada

Yesterday I gave a short statement to the Nevada Assembly Judiciary Committee regarding a bill making its way through the legislature, Senate Bill 444.  Before I include it here, I wanted to give some background information that I think would be useful to fellow bloggers.

Defamation

Generally, defamation is a term used to include publication of spoken (spoken) or written (libel) words that are false.  So, in theory, if you wrote something false about someone on your blog, they might have a cause of action in court against you for defamation.  There are specific rules beyond that but as a rule of thumb, as a blogger, you want to be writing things that are truthful (and, given FTC rules, not likely to cause confusion).  Easy enough, right?

Strategic Lawsuit Against Public Participation

There is a lot of nuance to a successful defamation claim, but I always caution people that just because you’re in the right at the end of the day, it doesn’t mean someone can’t drag you into court.  Because of the risk of plaintiffs with deep pockets (able to pay legal fees, etc. even though they may not actually have a chance at winning) filing suits (or threatening them) just to get content they don’t like removed, some states have made laws to protect against them.  These laws are called anti-SLAPP laws.

In Nevada, there has been a form of an anti-SLAPP law on the books since the late 1990s but in 2013 the law was made stronger.  Among other things, a defendant in a defamation suit can file an anti-SLAPP motion within 60 days of being served with a defamation complaint and challenge the plaintiff to show their case is legitimate.  This is a pretty neat framework because in Nevada if you wanted to write a review about a restaurant that hadn’t accommodated your allergies safely or perhaps refused service because of allergies, the restaurant would need to think twice before trying to make you remove the review or suing you.  If they did sue, you’d be able to have a remedy for having to hire an attorney to help you (if the anti-SLAPP motion was successful).

Nevada Senate Bill 444

The bill currently before the Assembly in Nevada would shorten the time a defendant has to bring an anti-SLAPP suit and also limit the types of speech protected.  It would also change the penalty framework that has been in place since 2013.  I read the following yesterday before the Assembly Judiciary Committee and I think it highlights how the food allergy community is impacted when it comes to being willing to share stories and concerns online.  The unique thing these days is that where you might have told a few friends about an experience in the past, now when you share information online it is going to make its way back to the company you’re talking about and they might not be happy.

As an example, a blogger who goes by the moniker “Gluten Dude” recently wrote a post about Udi’s Bread (a gluten free bread on which many with celiac disease and food allergies rely).  He used photos of bread that people have purchased that have holes in them and wrote about trying to reach out to the company about what people are reporting to him.  Like many bloggers, he is using the reach of his readership to magnify a message and get the attention of a large company.  This is the kind of grassroots coverage of an issue that bloggers try to offer that contributes positively to the community at large.

Looking further at the connection between free speech and online content, we have sites like AllergyEats and apps like YoDish specifically catering to the food allergy community.  They encourage honest feedback about dining experiences, so we know there’s an interest in getting good information.  And then there are mainstream review sites like Yelp that can make or break a reputation.

Remember, through all of this, that there is always a party to a lawsuit more prepared for the road ahead.  I recall in a mediation course in law school that this comes up even in the divorce context because one person has already come to terms with a decision even as the other may still be reeling and that changes the balance for negotiation.  In Nevada a plaintiff has two years to sue, but the defendant may not even be aware the suit is coming.  At any rate, all things to keep in mind when considering whether a potentially unjustified defamation suit is going to have a chilling effect on blogging, reviews, and even comments on facebook.

This is also relevant for journalists, as you can see in the picture below John L. Smith from the Las Vegas Review Journal offering his testimony against the bill.

In Las Vegas, NV on April 24, 2015
In Las Vegas, NV on April 24, 2015

I have been in the little teleconference room once before regarding a guardianship bill (you can read more about that here) – you can see to the left the committee members in Carson City.  Another time I offered testimony was when an interim committee was sitting in Las Vegas and I was in the audience for a similar interim committee in town last year.  I have to credit the stock epinephrine legislative process with giving me the courage to take on opportunities to offer my two cents in the legislative process.  Thank you, Caroline for the encouragement on all things legislative!  At any rate, here are my notes going into my testimony:

My Prepared Remarks

Good morning to the Chair and members of the committee.  My name is Homa Woodrum and I’m an attorney in Las Vegas.  I’ve lived in Nevada for 15 years in both Las Vegas, and (a point of pride having lived both north and south) in Winnemucca.  

Though my practice largely focuses on elder law and guardianship, I am also a food allergy blogger and co-founder of the Allergy Law Project – a blog with a focus on disability rights related to individuals with food allergies.  I mention this because the intersection of being an attorney and being a part of an online community results in contacts who reach out to me when they receive requests to remove content on personal blogs.  These individuals wonder about their rights but may opt to take down information rather than wrangle threatened, just threatened,  legal action.  

Other individuals contact me after anaphylactic reactions wondering what they can and can’t say about their experiences out of a desire to keep others in the specific food allergy community safe.  A mother whose son was served real milk instead of soy milk, a college student served his allergen by a barista, a visitor to Las Vegas for a convention served nuts and left to administer his own epinephrine by hotel staff…every single one of these individuals opted not to share their stories because of the commonly held notion that you can’t speak out about companies with big pockets without risking suit.  With SB 444 as written, I would have to advise them all that the risks are too high.

A suit can still be filed and the expense of a defense incurred even if you’ll ultimately prevail.  I am here to add my voice because I think this is an access to justice issue.  I imagine some attorneys would see SB444 as job security, but I for one would rather see continued protective measures available to those who would be crushed by the expense of defending litigation.

A plaintiff always has a choice and can do a cost-benefit analysis before initiating suit.  NRS 41.670 is, I submit, a necessity in the digital era.  As a Nevadan, and attorney, and, though I bristle at the term, a “mommy blogger,” I thank you for your time and urge you to reject SB444.

Final Thoughts

Have you ever decided not to write about something because you didn’t want to face someone else’s reaction?  Have you been asked to pull a blog post, or edit it, by someone else?

Remember, of course, that what I’ve discussed here is related to work that is original to you – if you’ve used a photo without credit or have copied and pasted someone else’s work, you’re treading into copyright issues (also, just don’t do that sort of thing!).  A request to remove content may be related to that content having been stolen but a truthful review of a product or experience may, depending on your state (Washington, for example, has anti-SLAPP laws on the books), have a little more protection than you thought before.

Hopefully Nevada can keep its reputation for strong anti-SLAPP protection!

The Teal Apron Awards

tealapronawards

I had this idea for Food Allergy Awareness Week (coming in May) but both of the people I wanted to honor have birthdays between now and then so in the spirit of not being able to wait on gifts one apron is already on its way and the other will be heading out in the mail in a week or two!

IMG_4963

Much like when I first began navigating food allergy friendly cooking and baking, the Teal Apron Awards are a joint effort between my mother in law and myself.  I’ve made this apron pattern myself before for a bridal shower gift but this time around I selected the fabric combination and my mother in law did the sewing.

It wasn’t until I had gotten to know some of my favorite allergy friendly cookbook authors that I learned the amount of time and expense that goes into recipe creation and cookbook writing.  We may complain about the expense of allergy friendly ingredients but these ladies buy those ingredients many times over as they test and re-test their recipes and tips.  It is part of what makes me trust it will be worth it if I have to go find a suggested ingredient.

That said, I’d like to honor the contributions of Cybele Pascal and Colette Martin to food allergy kitchens everywhere.  I know an apron is not much in the grand scheme of things but most of all I wanted to say “thank you.”

Cybele (www.cybelepascal.com) – I still remember the day you commented on my fledgling blog, I forwarded the email notification to more than one member of my family.  There were weekly recipe link ups and you visited all the contributors’ sites to offer them encouragement.  One of your recipes that became a staple in our home is from your first cookbook, vegan stuffed cabbages.  When you signed my cookbooks you were glad the pages were stained and crinkled because they had been used – they’re even more worn today!

IMG_4955

Colette (www.learningtoeatallergyfree.com) – thank you for not only answering my questions but the questions of those I send your way.  Even when people are just adapting a recipe in general I know I can tell them to reach out to you and you’ll brainstorm with them until they figure out how to adapt their recipes for their needs.  I love that you wrote a book focusing on food staples, fully understanding how non-top 8 allergens impact cooking for so many.  And getting to see Donny and Marie with you last year was a blast!

Through the magic that is the internet I am so proud to call both of these women my friends.  They are incredible human beings and inspirations as business women and mothers.  Happy April birthday, Cybele, and happy May birthday to Colette.  I hope you both enjoy your aprons!

IMG_4959

Food Find: Tree Hugger All Natural (Vegan, Gluten Free, and Nut Free) Bubble Gum

I was at Sprouts (formerly Sunflower Farmer’s Market) the other day and spied a new (to me) label calling to me with its promises of being nut free and allergy friendly.  Tree Hugger All Natural Bubble Gum checked out ingredient-wise for our family and I’m happy to report it also passed some thorough taste testing by my 4 1/2 and 6 1/2 year old kids.

IMG_4950

Each flavor is unique and matches its naturally colored exterior quite well, though I couldn’t really tell you the difference between “tangerine” and “orange” but you’ll have fun trying to find one.

At $3 a bag direct from the company (amazon affiliate link – currently a higher per bag price), I’d say the price is reasonable compared to other specialty food allergy items and we’d definitely buy it again.  There is a warning about a possible shared facility with soy, so exercise caution and contact the company if you have questions or concerns in that regard.

IMG_4948
INGREDIENTS: Cane Sugar, Glucose, Gum Base (Contains Natural Chicle), Brown Rice Syrup, Gum Arabic, Natural Flavors (including Lemon ,Grapefruit, Watermelon, Pomegranate ), Sun Flower Lecithin, Natural Colors, (Including: Red Beet, Berry Extract, Paprika Extract, beta Carotene, Chlorophyllin) , Carnauba Wax.

The variety we tried was “Citrus Berry Mix” and 2 pieces comes in at 10 calories.  The colors, flavors, and texture remind me of gum ball machines when I was a kid – something my kiddos don’t get to experience because of cross contamination risk (and lack of labeling).  I’m going to be on the lookout for a gumball machine bank for my office.  I think it might be a fun feature especially for clients bringing kids along to meetings.

Hopefully this variety of gum is a safe option!

____

Speaking of reviews, my latest at VegBooks.org are as follows:

Gordy and the Magic Diet (great pick for food allergy families)
Planet Kindergarten (a fantastic book)
Cinderella (2015 Live-Action Film)
Letters of the West: An ABC Book
A Penguin Named Patience: A Hurricane Katrina Rescue Story
Tracks Count: A Guide to Counting Animal Prints

Nevada Legislative Session 2015 – Making Your Voice Heard

It has been an interesting legislative session here in Nevada – every other year lawmakers get to their lawmaking and epinephrine is back on for discussion again!  (Posts about stock epinephrine in Nevada schools from last session are here, here, and here.)  The year between sessions is not without activity, as last April the subject of stock epinephrine was expanded upon and has progressed now to Assembly Bill 158.  We must not rest on our laurels as the resistance to AB158 feels greater than the initial stock epinephrine push (in my totally unscientific opinion).

Nevada Assembly Bill 158

The bill applies to:

“any public or private entity where allergens capable of causing anaphylaxis may be present on the premises of the entity or in connection with activities conducted by the entity. Such an entity may include, without limitation, a restaurant, recreation program, sports league, amusement park, stadium or arena. The term does not include a public or private school.”

Schools that are public and private aren’t included because of provisions for them elsewhere.  Just reading that passage gives me goosebumps because my pessimistic mind goes straight to thinking of people experiencing anaphylaxis in a restaurant or while playing sports after school.  And then I think of the lives that may be saved.  I think about vacationers in Las Vegas going out to eat and maybe leaving their epinephrine in their hotel room, something I tend to do when my routine is disrupted on vacations elsewhere, actually.

A lot of bases are covered in the bill – who may prescribe the epinephrine, protection from liability for those using the epinephrine in an allergic emergency, and more.

Submit a Comment (Nevada Residents Only, Please)

As you can see below, some folks have confused their bill numbers in making online comments as you can see by this remark “against” the bill that references the state retirement program (“PERS”):

PERS comment on the epinephrine legislation page

I am hoping the 20+ others in the graphic above are just confused, but wouldn’t it be great to have 20 “for” supporters for every “against” listed above?  The downside is the site won’t let me link you directly to the page for voicing support so I’ve got some screenshots to help you along so it is an easy process.

First!  Go to http://www.leg.state.nv.us/AppCF/Opinion/78th2015/vwComments.cfm or use this handy short link: http://goo.gl/dRezms and click “Submit an Opinion.”

howtocommentonanevadalegislativebill1

Now, select AB158 from the drop-down menu like so…

howtocommentonanevadalegislativebill2

And the summary of the bill will pop up – helping you make sure you’re offering commentary (or not, it is optional to write a comment) on the right bill (yes, that was a gentle jab at the PERS commenter above).  However, you’ll see that you need to select the variant of the bill you’re supporting.  Today, April 17th, an amended version was posted (viewable here) and it impacts provisions not only in the original bill but in last session’s school stock epinephrine bill.  Be sure to fill out the Constituent Information before submitting so they know you’re a, well, constituent.

howtocommentonanevadalegislativebill3

This bill has not been on my radar as much as it might have been had there not also been two guardianship bills winding their way around, (guardianship is a main area of my law practice).  I mention the guardianship bills because my involvement in the process for both has shown me just what a dream team Senator Debbie Smith had in her camp last time around, including Senator Smith herself.  Everyone was poised, on point, and respectful of legislators’ time during the whole process.  In contrast, I was boo-ed when I made my statement to a legislative committee about AB325 the other day (right about at the part in my talk around paragraph 3).

SenS
Senator Smith speaking before a committee in April 2014

 

Senator Smith recently returned after a February 3, 2015 operable brain tumor diagnosis (read more on Grateful Foodie) and subsequent surgery and I think a great “welcome back” gift we could offer such a champion for individuals with food allergies would be support for AB158.

If you have submitted your vote of support for AB158, be sure to comment below.  Thank you for your help and thank you also to the team of food allergy advocates in both Northern and Southern Nevada for your continued hard work!