The Nevada Supreme Court recently overturned a lower court’s ruling on a defamation case filed by a biologist who works for the Nevada Department of Wildlife, or NDOW. The suit was filed against the manager of a Facebook page that’s critical of NDOW’s policies regarding the treatment of bears in the Eastern Sierra. The state supreme court struck down the biologist’s defamation case, so now it’s headed back to Washoe County Second Judicial District Court.
In 2017, Carl Lackey, a biologist with NDOW, sued Lake Tahoe resident Carolyn Stark for defamation for comments made by third parties on a Facebook page she moderates. The Facebook page is called NDoW Watch: Keeping them transparent. With a little over 2,000 likes, the Facebook page has historically directed harsh criticism toward Lackey and NDOW, and advocates for transparency on how the state agency handles bears in the Tahoe-area.
NDow Watch: Keeping them transparent Facebook page profile photo.
Lackey’s defamation case tests the existing legislation that provides protections under the First Amendment.
Under federal law, Section 230 of the Communications Decency Act states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This protects hosts from being liable for comments published by third parties on their site.
Stark didn’t write the posts and comments on the Facebook page that Lackey sued over, so her attorney filed an Anti-SLAPP lawsuit. SLAPP stands for Strategic Lawsuit Against Public Participation, which is a term that refers to a lawsuit that seeks to censor or silence a citizen voicing an opinion on a matter of public concern, by burdening the individual with high costs of legal fees.
"At the end of the day, Anti-SLAPP legislation is really designed to protect people from being beat down by the legal process. Somebody who does not have a lot of resources to fight against legal motions or lawsuits. Basically, their ability to have First Amendment protections, historically, has been limited," said Bob Conrad, the publisher of ThisisReno, who’s been covering this story.
At the Washoe County Second Judicial District Court, Lackey’s claims prevailed, but the Nevada Supreme Court unanimously sided with Stark. Justice James Hardesty wrote the court’s decision and called the lower court’s ruling erroneous. He sent it back to be reviewed in consideration with the Communications Decency Act. Additionally, if Stark wins, she could be rewarded $10,000 for her legal fees.
In addition to this lawsuit, in 2018, Stark and a different NDOW biologist named Heather Reich reached a settlement. Reich alleged that Stark aggressively followed her after collecting a bear trap.
“Carolyn Stark and NDOW, they're not friends. The agency did try to get a restraining order against her, allegedly for some – what they considered to be – activity that was threatening. So there was a case, where basically the state and her reached a settlement: These are the parameters for you to do your activism without interfering with official agency actions,” Conrad said.
Today, Stark’s Facebook page advocates for NDOW officials to be more transparent on how they handle bears.
Here’s how the agency describes on its website how it handles calls about bears:
Our first step it to assess the situation. We try to figure out if this bear is knocking over garbage or knocking on windows. If the bear seems to be escalating in its habituation or food-conditioning, NDOW may set a trap to catch the bear and apply aversive conditioning. This is a humane, non-lethal management action many agencies engage in to keep a bear from getting to the point where it is considered a public safety threat and may have to be removed.
When NDOW can engage a bear early on in its conflict behavior we have a much higher success rate in saving the bear. This is accomplished by trapping and tagging the bear, and then releasing it at or near the capture location and using rubber bullets and Karelian Bear Dogs for aversive conditioning.
But when our trapping efforts are hampered by seemingly well-intentioned people, the bear will likely follow a behavior progression that ultimately leads them into potentially dangerous encounters such as entering homes, causing the unwanted death of the bear by officials.
NDOW may be the ones to euthanize a bear, but we are not the ones that killed it.
Learn more at ThisisReno.