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!

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).

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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!

 

Stock Epinephrine in Nevada Schools and Onward to Restaurants and More

Today, thanks to a heads up from Caroline of GratefulFoodie.com, I was able to attend the Nevada Legislative Committee on Healthcare Interim Legislative Session hearing.  In Nevada, we only have legislative sessions every other year.  Last year was a great year for food allergy advocacy as Senator Debbie Smith championed Senate Bill 453 regarding Stock Epinephrine in Nevada Schools.  The bill eventually passed with unanimous votes in both branches of the state legislature.

pre
Getting Ready to Start

This was not my first time on the fourth floor of the Grant Sawyer Building near downtown Las Vegas but it certainly was my quickest visit as our contingent was called up right after the public comment section of the meeting.  I was able to visit a bit with representatives from Mylan (makers of the “Epi-pen” epinephrine auto injector) and their Nevada lobbyist as well as the co-leader of our local Food Allergy Parent Education Group, Susanne Stark, Senator Debbie Smith, and Chef Keith Norman of the South Point (and most recently board director at FAACT).

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Senator Smith Addressing the Committee

Senator Smith began by letting the committee know about the success in the last year with stock epinephrine in Nevada. She poignantly told of how when the bill passed we did not know when it would be needed but now we did (Andrue Casado being one of the lives saved). The work is not yet done, she cautioned, because access can extend to restaurants.  Colin Chiles of Mylan would next expand on this point by referencing other states where unique situations were covered like New York summer camps and Alaska hunting guides carrying stock epinephrine.

KandS
Susanne Stark and Chef Keith Norman Speaking About Expanding Stock Epinephrine

Susanne followed with her account of the uses of stock epinephrine in private schools that were open to acquiring it and how in Clark County, Nevada alone there had already been 20 uses of stock epinephrine since the bill passed last summer.  Keith spoke about his experiences in food safety and the need for epinephrine in restaurants and the like.

Kacey
Kacey Larson Offering Testimony from Carson City via Video Feed

Attention turned to Kacey in Carson City, brandishing the front page of the Reno Gazette Journal featuring Andrue Casado and how his life was saved when he had his first ever anaphylactic reaction at school in Reno. After some closing remarks by Senator Smith, the committee chimed in with their words of support and personal experiences with food allergy. Senator Jones and Senator Dondero Loop had direct family connections. Senator Jones’ wife recently had an anaphylactic reaction and Senator Dondero Loop’s family member navigated food allergy at a time when epinephrine autoinjectors were not prevalent or the norm.

From Left to Right: Senator Debbie Smith, Homa Woodrum, Keith Norman, and Susanne Stark (Courtesy of Susanne Stark)
From Left to Right: Senator Debbie Smith, Homa Woodrum, Keith Norman, and Susanne Stark (Courtesy of Susanne Stark)

We laughed at taking a “selfie” after the hearing but I think it is a great way to make sure everyone is in the photo. Thank you for sharing this photo, Susanne! I care deeply about each of these great individuals and get chills just thinking of the difference each of them is making in their work. Senator Smith for her work for Nevada, Susanne (and her co-leader Debbie Bornilla) for the parents and the community in Las Vegas as a support group leader, and Chef Keith for making so many happy and safe.

____

After the hearing Susanne raised the question to Mylan’s representatives about expiration dates on epinephrine (we were advised to feel free to return Epi-Pens with shorter than one year until expiration when issued as the pharmacy can readily exchange them for “fresher” stock).

Excitingly for me, Colin informed me the Mylan headquarters in Pennsylvania are a great space as I am traveling tomorrow to Pittsburgh to see it for myself at the invitation of Mylan. I was not sure if I could/should accept the opportunity when it was offered to me a few weeks ago but I think what I learn could be useful to the work we are doing in Nevada. Granted, this will require a lot of disclosure on my part as my plane trip, transportation, hotel, and meals are being covered and that does create the appearance of bias but hopefully longtime readers will know that I value my editorial independence. I look forward to sharing my experience especially since it will be my first time away from my children overnight (well, except for the night I was in the hospital in labor with my son and my daughter was home with my mother in law).

I will miss my kids tremendously and am very nervous about all the new social situations but there’s a sliver of excitement about the trip and getting to see the other attendees at the “Mylan Summit” April 10-11. Here we go!

Local Advocacy Opportunity: Clark County School District Wellness Regulation 5157 (Proposed Changes)

fapelogo

I wanted to share this even though it is aimed more to folks here in Clark County, Nevada than the general internet.  An e-mail from FAPE (our local Food Allergy Parent Education Group, click here for upcoming events on their website) alerted that some promising changes have been proposed (spearheaded by Food Services) to rules in the district that involve treats in classrooms and food rewards.  The proposed changes might not pass, however.  Here’s a run-down of some of the changes the district is looking at making (I’m most excited about the fifth one on my list):

  1. Adding a requirement that there be no trans fats in food and beverage choices offered to students.
  2. Specifying that foods offered by student stores, sports teams, the PTA, kiosks, and vending machines must be approved if they are offered an hour before school starts through half hour after the end of the school day.  The approved list is provided by the district’s Registered Dietician.  Also, outside vendors can’t sell things during the school day – student run events selling food items essentially would have to be run by students and any vending contracts would have to be approved by the district’s legal counsel.
  3. Furthermore specifying that: “All food sold or given away must be commercially prepared.  NO homemade food may be sold or given away to students from one-half hour before school starts until one-half hour after the end of the regular school day.”
  4. A provision exempting the following activities from the nutrition guidelines but not from the “no homemade food” requirement: Halloween, Thanksgiving, Christmas, and Valentine’s Day activities as well as school wide recognition parties (limited to no more than four occurrences per school year).
  5. A mandate that: “Teachers should not use foods or beverages, especially those that do not meet specified nutrition standards, as rewards for academic performance or good behavior.”
  6. Though “FAAN” is now “FARE,” an explanation in the text of the Wellness Regulation that states: “The Food and Anaphylaxis Network supports the restrictions on homemade food due to the great threat of anaphylaxis when exposed to allergens.  The School Nurses have worked to promote this policy within our Clark County School District.”
  7. Fines will result from violation of the State of Nevada Wellness Policy and USDA Wellness Regulation (through the Healthy Hunger Free Kids Act of 2010) and will be the liability of the violating school.

I uploaded a highlighted version of the provisions provided by FAPE in case you’re like me and prefer to read rules in context but the list above is promising.  I’d love to see provisions moving classrooms away from food incentives not just for children with food allergies but for the health of all children.

A friend of mine has been wrangling with some backlash (at skittlegate.blogspot.com, you can also read about it here) from advocating against food rewards in classrooms (in an area in Virginia where the rules already provide that the incentives are discouraged) in case you want to get a preview of the arguments people are likely to make here in Clark County against such a provision.  If you’ll recall, Virginia is at the forefront of the stock epinephrine movement so if people are resisting changes over there I think it would be prudent for those of us in Southern Nevada to front load support of these wellness provisions.

Remember that the homemade food points cover food sold or given away at school but kids would still be able to bring their own food from home which I totally support.  (The school my daughter goes to right now for preschool doesn’t allow outside food even as snacks and that means she can’t go to class more than a few hours before I bring her home to eat so I wouldn’t be advocating anything like that for the district.)  This is really about giving clear guidance to schools.

So, here’s the call to action: contact the district deputy superintendent and associate superintendent to voice support for the changes if you would like to see them adopted in the Clark County School District.  The District has been really working hard to address food allergy concerns but the community has to support them.  I know we’re all busy but how about a post card (or two)?

Pat Skorkowsky
Deputy Superintendent
5100 W. Sahara Ave., 4th floor
Las Vegas, Nevada   89146
(799-5475)

Jeremy Hauser
Associate Superintendent
2298 Vegas Valley Dr.
Las Vegas, Nevada  89169
(799-1222)

If you do send a note over or make a call, please share what you did in the comments.  Thank you!