Courts Grapple With Anonymous Web Site Posters as "Sources"
In a previous post, we discussed the protections afforded to journalists by state shield statutes. These statutes, which some 35 states have passed, protect reporters from being forced to identify their sources and disclose other source materials except under certain, limited circumstances. In that post, we mentioned that one of the unanswered questions in most states is how these shield statutes will be interpreted in a world of bloggers and other "new media" journalists.
In recent months we have seen the first in what will likely be a series of decisions involving efforts by third parties (either law enforcement officials or civil litigants) to force newspapers to reveal the identity of anonymous commenters on their web sites. The key question in these cases is whether a commenter to a newspaper web site is a "source" as defined in the statute.
The first case arose in Montana and involved The Billings Gazette newspaper. A local politician who had filed a defamation lawsuit against his political opponent sought the identity of an anonymous commenter on the newspaper's web site, apparently in the belief that the commenter was in fact his opponent. The paper argued that online comments to posted stories are a "core service and integral part" of the newspaper's business because they "foster[] democratic discourse through communities of users." In an oral ruling from the bench, the judge in Montana quashed the subpoena, holding that the state's shield statute protected anonymous commenters as "confidential sources."
Just a few weeks later in Oregon, another plaintiff subpoenaed The Portland Mercury and the Willamette Week newspapers for the IP address of an anonymous commenter who, the plaintiff claimed, had defamed him in a comment on the newspapers' web sites. The judge in this case took a different approach. Rather than calling the commenter a "source," the judge held that the IP address was "information" as defined by the Oregon Revised Statutes, and that the shield statute protects "any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public."
Soon after that decision was issued, in an almost identical case, a court in Florida quashed a subpoena issued to the Northwest Florida Daily News. The court held that Florida's shield statute applied to Internet commenters as "sources."
The final case, which is still pending, is different from the others in that it involves a criminal matter. In this case, the state's attorney in Madison County, Illinois issued a subpoena to The Alton Telegraph, seeking the IP addresses of five anonymous commenters on the newspaper's web site. Law enforcement officials contend the commenters to an online story about a murder investigation might have information relevant to the criminal prosecution. The paper sought to quash the subpoena, arguing that the posters were "sources" under the Illinois shield statute, and that the state had not made the required showing to overcome the privilege. In response, the state has argued that because the commenters never actually spoke to a reporter with the newspaper, and because the information they posted was not used in an actual story, they were not "sources" under the shield statute. The court has not yet issued a ruling on the newspaper's motion to quash.
These cases represent just the first skirmishes in what will likely be a battle in every state with a shield statute to better define how these laws interact with the new face of journalism. Just as courts have had to grapple with the question of who is a "journalist" in a world of bloggers, they will now have to decide what a "source" is. As traditional newspapers continue to focus their efforts on building a viable Internet presence, their ability to protect the identity of the members of the community who contribute to that presence will be vital.
