Editorial: Laws protecting journalists should apply to bloggers

The Nevada Supreme Court unanimously ruled earlier this month that online publications are protected under the state’s 1970s-era shield law that protects journalists for newspapers, periodicals, press associations, radio and television stations from being required to reveal their news sources during litigation — even though lawmakers at the time doubtlessly did not envision the creation of online media.

A district court judge earlier this year held that a blog does not qualify as a newspaper because it is not printed in physical form and therefore is not protected by the news shield law.

The ruling arises from a defamation lawsuit brought by Storey County Commissioner Lance Gilman against blogger Sam Toll, who questioned on his blog The Storey Teller whether Gilman actually lives in the county and is therefore ineligible to serve on the commission.

Gilman, owner of the Mustang Ranch brothel and manager of the Tahoe Reno Industrial Center, has listed his residence as a trailer on the Mustang Ranch property. Toll wrote that sources told him this was not true. One said that Gilman would leave the brothel grounds every night at 8 p.m. and another said he keeps his possessions at a different location, where he actually lives.

During a deposition, Toll was asked to reveal those sources, but he refused.

Blogger Sam Toll

Though the court ruled that online publications may be protected by the shield law, it drew up short of saying whether Toll himself qualified.

The opinion, penned by Chief Justice Mark Gibbons, states, “In light of this modernization of the news media, we are asked to determine whether digital media falls within the protections of NRS 49.275. We hold that it does, but we do not address the specific question of whether or not petitioner Sam Toll qualifies for such protection as a blogger. Therefore, we grant the writ petition in part, so that the district court can conduct further proceedings in light of our holding and reconsider whether Toll’s blog falls within the protection of the news shield statute.”

NRS 49.275 reads in part, “No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation …”

To further complicate matters Toll also filed to have the defamation suit dismissed by citing the state’s anti-SLAPP law. SLAPP stands for Strategic Lawsuit Against Public Participation and is generally defined as vexatious litigation solely designed to squelch free speech under the burden of expensive, tedious and lengthy court wrangling.

Gibbons explained, “The district court held that there was a potentially viable claim under the anti-SLAPP statute. According to the court, Gilman made a prima facie case for a probability of success on the merits as to the falsity of the residency statements and their damaging nature, but he failed to make such a showing for actual malice, which is required to prevail on a defamation claim against a public figure. The district court granted Gilman’s motion for limited discovery on whether Toll had actual malice when making these statements.”

The Supreme Court directed the judge to vacate his order compelling Toll to reveal his sources and to reconsider the motion in light of the superior court opinion.

The courts should keep in mind that at the time of the nation’s founding, when the First Amendment prohibited Congress making any law abridging freedom of the press, the press was often one guy with a press cranking out his views and those of his contributors. Sounds rather like a blogger.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

8 comments on “Editorial: Laws protecting journalists should apply to bloggers

  1. reziac says:

    Print out a copy of your blog. Bring it to court. Problem solved!

    And goes to show that the distinction is a bit silly, since it’s so easily negated.

  2. Anonymous says:

    The Supreme Court got it wrong naturally and almost as clearly so do you Thomas.

    There was no internet to speak of when the NRS was enacted and so according to the express terms of the statute it’s not possible that an internet publication or author of that publication could be protected by the statute.

    I thought you were against judicial activism Thomas? What else could a judge be doing other than committed an act of judicial activism by construing a statute so clearly beyond the express language?

    ““No reporter, former reporter or editorial employee of any newspaper, periodical ”

    This guys isn’t a reporter, former reporter, or editorial employee of ANY NEWSPAPER OR PERIODICAL as those words are defined and particularly as of the date the statute was enacted.

    He’s not covered and until the legislature enacts a new statute protecting guys that do what he does, he’s out.

    Principles man.

  3. At the drafting of the First Amendment there were no radios or televisions, but the free press portion applies to them.

  4. Anonymous says:

    And other than though judicial activism; I.e. Giving meaning to the words in the law that did not exist, could that have happened?

    And please correct me if I’m wrong here, but I thought you were against judicial activism.

  5. Rincon says:

    Good point, Anonymous. Unless this blogger fits the criteria named in the law, there is no reason to presume him covered. This is for the best because it seems to me that if we use Thomas’ interpretation of free speech, then there would be no recourse for genuine libel or slander. Anyone spreading false information about anyone else could say they were given the information by an anonymous source, and claim immunity.

    I suspect when the shield law was passed, almost anything published was put out by a publisher or network with a name to protect and written by someone with a professional reputation to protect. Those circumstances went a long way in minimizing character assassination for profit or revenge.
    Protected journalists are a far cry from say, a hired nobody with nothing to lose.

    With the advent of the Internet, it is clear that any idiot that posts anything should not be protected, yet serious bloggers do need some. This is where judges may have to step in to determine if literal interpretation of laws is proper. As I understand it, case law helps prevent the inevitable consequences of enforcing laws rigidly and blindly when it is obvious that creating perfect laws that fairly manage every conceivable situation is impossible. I’m certainly not a lawyer, but I believe an example of accepted case law which is not explicitly covered by legislation is the concept of unconscionability. “Typically, an unconscionable contract is held to be unenforceable because no reasonable or informed person would otherwise agree to it.” In these cases, a judge may consider a contract unenforceable even when no specific law applies.
    https://en.wikipedia.org/wiki/Unconscionability I hope a similar fate awaits those who try to abuse the protections of the Shield Law.

  6. Steve says:

    It’s pretty simple.

    Use the same criteria the IRS does.

    Receipts saved and records recorded with dates in order.

    Blogging on a regular basis makes the blogger a journalist.

    Infrequent, random posts are not journalism.

    Facebook, Twitter and the rest of social media are not journalism.

    Take that with your next swallow.

  7. Rincon says:

    Not bad Steve. You should work for the government 🙂

  8. Steve says:

    When it comes to record keeping, the IRS is the bomb.

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