NH Supreme Court Rules ‘Shield Law’ Applies to Online Reporters

Published June 9, 2010

The New Hampshire Supreme Court has ruled that an online news site is protected by the state’s reporters’ shield law. The decision has renewed debate over who should be considered a “journalist” under such laws, a question that is spreading from state to state.

The case involved a mortgage industry “watchdog” Web site called The Mortgage Lender Implode-O-Meter, which reported in 2008 on a leaked document it obtained about The Mortgage Specialists Inc., which has offices in Massachusetts and New Hampshire.

A Rockingham County Superior Court judge ordered the Web site to take down the report and reveal its anonymous source, which accused the company of fraud. But the May decision by the New Hampshire Supreme Court reversed that decision, sending the case back down to Rockingham with instructions to cede to its view that journalism is the same—whether practices by long-established newspapers, or new Web sites.

“The fact that Implode operates a website makes it no less a member of the press,” wrote the New Hampshire Supreme Court.

The Web Site’s Case
Jeremy D. Eggleton, an attorney with Orr & Reno of Concord, New Hampshire who represented the Implode Web site in the case, said that technically the Granite State “has no shield statute.” But the protection is complicit under “common law” in New Hampshire’s state constitution.

“Under statutes, the debate often becomes about who is a journalist who would be protected by the statute,” Eggleton said. “So we communicated to the court that since there was no statute, the [common] law should apply to anyone who gathers news, analyzes it, and disseminates it.

“That doesn’t cover everyone who posts on a blog, but if they are gathering, analyzing and disseminating news, then it covers that person,” he added.

“The fact that the state constitution has been held to protect reporters sources imposes a duty on judges to define the extent to which that’s the case,” Eggleton said. “That doesn’t prevent the legislature from enacting legislation that refines or limits the reporter’s privilege in some regard, as long as it doesn’t contradict the constitution.”
A Growing Dispute
Lawsuits forcing bloggers to give up their sources—a measure rarely taken against mainstream news outlets—are a growing phenomenon, most recently hitting the news in New Jersey and California this spring.

Lucy A. Dalglish, executive director of the Arlington, Virginia-based Reporters Committee for Freedom of the Press, said it might be time for the courts to end the distinction between those who report for newspapers and television networks, and those who ply the journalism trade online.

But bloggers and online journalists have certain responsibilities, as well.

“We consider a reporter to be a person who represents, at the time he is gathering information, that the information is being gathered for the purpose of disseminating it to the public,” she said.

The representation to the source that the information will be passed on is key, according to Dalglish.

Free Speech v. Free Press
But the advent of online journalism, and the ability of any blogger to hunt down and ferret out stories, raises many questions. One pressing question, says Dave Roland, executive vice president of the St. Louis, Missouri-based Show Me Institute, is the difference between freedom of the press and free speech.

“Is there a legal difference between free speech and free press?” Roland said. “Is there a difference between an amateur journalist and a professional?”

The underlying question, he added, is whether the legislature or the courts should be allowed to make the distinction.

“I think the direction that the United States Supreme Court is heading is that legislators should not be allowed to make that distinction,” Roland said, adding “and neither should the courts.”

The “upshot” of cases that raise such questions, he said, is that it could “eliminate the distinctions that have existed previously between types of speakers.”

Defining Free Speech Parameters
Roland points to a similar question raised at the University of Tennessee, in which an operator of a Web site was refused a media pass to cover university sporting events.

“The shield laws usually apply to members of the press or members of the media who want to protect their sources,” Roland said. “You might eventually have a question over whether it’s permissible to grant special exemption to laws that would otherwise apply to people.”

The law is supposed to afford citizens equal protection, Roland adds.

“We need to be dealing with a freedom of expression, rather than drawing this distinction between speech and press,” he said. “And I think the tendency of the courts has been to go in that direction. If you look at what the U.S. Supreme Court has done in this term, such as United States v. Stevens, they have tried to expand the ideals of free speech.”

United States v. Stevens ruled that animal cruelty videos posted online were protected by the First Amendment on free speech grounds.

Momentum Toward Free Speech
Roland believes the U.S. Supreme Court ruling in Citizens United v. Federal Elections Commission —in which the justices said the government was wrong to quash the distribution of a political film close to the 2008 elections—is more applicable to Implode.

In Citizens United, he says, the court held that the identity of the speaker is not important for deciding whether they can share information or an opinion.

“The issue is whether the government has the authority to control what information should be put out there,” Roland said.

Loren Heal ([email protected]) writes from Neoga, Illinois.