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or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to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.

Newspaper column: Nevada press shield law protects bloggers

Unlike too many jobs in this country there is no such thing as a licensed journalist, but a Carson City judge has found such in the penumbra of Nevada’s press shield law.

Normally those in the press don’t seek any privilege not accorded any other citizen, but by the very nature of the job — showing up at fires and car crashes, attending public meetings, poking into nooks and crannies of government and society, asking questions and quoting people — there needed to be a means to keep the press independent and not be dragged into court hearings or depositions every other week.

That’s the purpose behind the state press shield law. It prohibits giving the third-degree to the Fourth Estate. Otherwise, there would be considerable disincentive for people to talk to reporters, because reporters could be forced to testify about them or reveal their identities.

Sam Toll

The law says, “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 proceeding …”

The devil apparently is in the details.

Earlier this month District Court Judge James Wilson Jr. ordered Sam Toll, creator of The Storey Teller blog, to disclose his sources for a story about Storey County Commissioner and brothel owner Lance Gilman, who is suing Toll for defamation. Toll reported that sources told him the commissioner does not actually live in his district.

Toll wrote in a recent op-ed for the Las Vegas newspaper, “Gilman, one of the wealthiest men in Northern Nevada, insists he lives in a double-wide trailer behind the swimming pool at the Mustang Ranch brothel rather than the home he owns in Washoe Valley. Evidence and interviews I conducted suggest otherwise. In order to be a Storey County commissioner, you must reside in the district you represent.”

The judge concluded Toll is a reporter, but he failed to “provide facts, legal authority, or argument that the Storey Teller is a periodical …” Hair splitting. The law says periodical, which is a journal appearing periodically.

Instead of a press, a blogger uses a computer. It can be argued that Benjamin Franklin’s “Poor Richard’s Almanack” was America’s first blog — self-written, self-printed, self-promoted. Print on paper or print in the ether. It is a distinction without a difference.

The First Amendment guarantee of freedom of the press was extended to radio and television without hesitation.

The judge further concluded Toll is not a reporter for a newspaper and did not join the Nevada Press Association until August 2017 and thus must reveal sources obtained prior to then.

Toll is not a reporter of or for the Press Association. He is a member. It is not a licensing body.

The state Supreme Court has recognized the shield law’s important function for the citizenry.

Justice Myron Leavitt opined in a case in 2000 in which a plaintiff tried to force a Las Vegas newspaper reporter to reveal his sources: “Nevada’s news shield statute serves an important public interest and provides absolute protection against compelled disclosure to ensure that through the press, the public is able to make informed political, social and economic decisions.”

Clark County judges have twice interpreted the shield law differently. In 2014 two judges ruled that the Mesquite Citizen Journal and its reporter, “although an online only news media source,” were protected by the shield law from being forced to reveal communications and records related to a series of stories about the local water district. In 2016 a judge denied demands to review a film maker’s unpublished notes and video interviews with a witness in a criminal case, ruling the press privilege also extended to the film maker.

Despite those rulings, Judge Wilson granted Gilman’s motion to compel Toll to reveal sources of information prior to August 2017 and gave the parties until April 12 for discovery to be completed.

For his part, Toll has said he is willing to be jailed before he will reveal sources. “Integrity is the most precious currency we have as journalists. Without it, the public would not entrust us with the information we need to help protect society from wrongdoers,” Toll wrote.

Let’s hope this current case is appealed and results in a similar outcome to that of the Mesquite Citizen Journal and the film maker.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Judge rules Nevada press shield law does not cover blogger

There is no such thing as a credentialed or card-carrying journalist. Unlike too many jobs in Nevada and the U.S. there is no government licensing of journalists. If you talk to two people you are a gossip. If you talk to three you are a journalist.

But a Carson City judge apparently thinks the Nevada press shield law created the concept of a licensed journalist.

Normally those in the press don’t seek any privilege not accorded any other citizen, but by the very nature of the job — showing up at fires and car crashes, attending public meetings, poking into nooks and crannies of government and society, asking questions and quoting people — there needed to be a means to keep the press independent and not dragged into court or depositions every other week.

Sam Toll

That’s the rationale behind the state press shield law. It prohibits dragging members of the Fourth Estate in for a third degree interrogation. Otherwise, there would be little incentive for people to talk to reporters, because that reporter could be forced to testify against them.

The law says, “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 proceeding …”

The devil is in the details. The law predates the blogosphere.

This week Judge James Wilson Jr. ordered Sam Toll, editor of The Storey Teller blog, to disclose his sources for stories about a Storey County commissioner, who is suing Toll for defamation, according to USA Today.

It seems the stories were written in the months before Toll joined the Nevada Press Association.

One of Toll’s attorneys issued a statement saying, “Such a ruling undermines the protection of fundamental Constitutional principles of freedom of speech and of the press and stifles the free flow of information that is essential for any free society to exist.”

Whether Toll is press or not, he still has the right of free speech. Perhaps, he should have to face his accuser but should he be required to drag others into the fray?

The state Supreme Court has twice upheld the shield law as serving an important function for the citizenry.

When the First Amendment was written no one could have imagined radio and television, but they came under the protection of the “press.” Shouldn’t bloggers also be allowed to don the mantle?

Justice Myron Leavitt opined in a case in 2000 in which a plaintiff tried to force a Las Vegas newspaper reporter to reveal his sources: “Nevada’s news shield statute serves an important public interest and provides absolute protection against compelled disclosure to ensure that through the press, the public is able to make informed political, social and economic decisions.”

In 2016 a Clark County judge interpreted the shield law differently, denying lawyers request to review a film maker’s unpublished notes and video interviews with a witness in a criminal case.

The ruling, according to a Las Vegas newspaper, marked the first time a Nevada judge extended the press privilege beyond institutional reporter. “This is the first time any court in Nevada has looked at that,” the film maker’s attorney was quoted as saying. “It is a good victory for all information gatherers in the state.”

Let’s hope this current case is appealed and a similar outcome is reached. Or, perhaps, the lawmakers in Carson City could update the law.

The Nevada Independent has posted a copy of the judge’s ruling.