Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

On July 27, 2010, N.C. Superior Court Judge Calvin E. Murphy ruled from the bench that North Carolina’s shield law, N.C. Gen. Stat. § 8-53.11, protects a newspaper from the compelled disclosure during judicial proceedings of the identities of anonymous commenters to the newspaper’s website. Judge Murphy signed the written order in the case on August 16, and it is available here. To our knowledge, this is the first case in which a North Carolina court has ruled that the state's shield law applies to the identities of anonymous website commenters, although other states have been grappling with the issue with respect to their own state shield laws.

The case stems from the criminal proceedings in Gaston County, N.C., against Michael Mead, who has been charged with murder. Mead’s attorney issued a subpoena to the publisher of the Gaston Gazette, at first requesting identifying information related to a particular website poster (“justicen2010”), but then later also requesting a copy of the Gaston Gazette’s contract with the provider of its website comment forum. (More information on the case is available from the Gazette’s website).

The Gazette challenged the subpoena and raised the state shield law as a protection against compelled disclosure. Judge Murphy agreed with the Gazette’s position, holding that the information sought by the defendant—both the website commenters’ identities and the business contract with the comment forum provider—were confidential information related to the newspaper’s and publisher’s newsgathering and news publishing activities and were obtained while the publisher was acting as a “journalist,” as defined in N.C. Gen. Stat. § 8-53.11(a)(1). (Note: The information at issue in this case was confidential, but North Carolina’s shield law protects both confidential and non-confidential information.) Thus, the judge held that the shield law applied to the facts at hand.

Further applying the statute, Judge Murphy held that the defendant failed to overcome the qualified privilege set forth in N.C. Gen. Stat. § 8-53.11 by demonstrating clearly and specifically that the information and documents sought (1) were relevant and material to the proper administration of the legal proceeding at issue, (2) could not be obtained from alternative sources, and (3) were essential to the maintenance of a claim or defense. In the absence of this showing by the defendant, Judge Murphy quashed the subpoena.

With this ruling, the North Carolina Superior Court now joins other state courts that have held their respective state shield laws protect anonymous website commentary from compelled disclosure in judicial proceedings.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a decision that raises a host of legal and ethical questions, the Cleveland Plain Dealer today disclosed the identity of someone who had frequently posted anonymous commentary on the newspaper's web site.  According to the paper, the commenter, who used the name "lawmiss," was using the personal email account of local trial Judge Shirley Strickland Saffold and was commenting in harsh terms about cases involving Judge Saffold.

While the Plain Dealer quotes the judge's daughter as admitting to being "lawmiss," this story comes less than two weeks after Judge Saffold ordered the arrest of a Plain Dealer reporter who failed to appear at a hearing to determine how the newspaper obtained a psychiatric evaluation of a suspected serial killer on trial before the judge.  Another local judge later admitted to being the reporter's source.

In an explanatory story also published today, the newspaper claims that it began investigating "lawmiss" after he or she directed comments at the relative of a Plain Dealer reporter.  Once it connected "lawmiss" to Judge Saffold's email account, the newspaper made a public records request for details of her use of her government-provided computer.

Plain Dealer Editor Susan Goldberg argued that once the paper found out that the commenter was somehow connected to the judge, it had a duty to report the information.  She said:

What if it ever came to light that someone using the e-mail of a sitting judge made comments on a public Web site about cases she was hearing, and we did not disclose it? These are capital crimes and life-and-death issues for these defendants. I think not to disclose this would be a violation of our mission and damaging to our credibility as a news organization.

Journalism ethicist Bob Steele disagrees, saying: "It does raise the question of the wisdom and fairness of the newspaper using the registration system of the Web site for reporting purposes."

We have reported frequently over the past two years about newspapers' legal fights to prevent disclosure of anonymous commentary on its web site and about the developing trend towards protecting this category of speech.  While the Plain Dealer certainly should enjoy the journalistic discretion to investigate and report stories about possible ethical breaches by people in power, decisions such as this will only provide ammunition to prosecutors and other attorneys seeking information about anonymous commenters.  After all, how important can the First Amendment interest be to the newspaper if, when it suits the paper's own reporting needs, the paper will not hesitate to investigate and disclose these same people?

To be clear, there is no question that under the Plain Dealer's online registration system, it had the right to investigate and disclose the identity of "lawmiss."  And it certainly made for a good (and important) story, one that will no doubt draw readers.  Goldberg is also correct that it is hard to see how the paper could ignore the story, once it made the decision to investigate "lawmiss."

Down the road, however, when the Plain Dealer seeks to quash a subpoena from a local politician seeking the identity of someone who he or she alleges posted defamatory material anonymously, Exhibit A to the plaintiff's brief will almost certainly be this story.  And if the paper loses the motion to quash, it may have no one to blame but itself.

UPDATE: See below for a clarifying comment from John Kroll from the Plain Dealer.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

In a decision that goes against the grain of a building legal consensus around the country, an Illinois trial court has ordered the disclosure of the identity of an anonymous blogger who the plaintiff, a local politician, claims defamed her 15-year-old son.

The controversy started this spring, as local elections in Buffalo Grove Village were heating up, when an online debate between the candidate's son and "Hipcheck16" got testy.  When challenged to a live debate, Hipcheck16, wrote, according to reports: "Seems like you're very willing to invite a man you only know from the Internet over to your house -- have you done it before, or do they usually invite you to their house?"

In response, the candidate, Lisa Stone, filed on behalf of her son a pre-suit subpoena seeking Hipcheck16's identity in preparation for a possible defamation claim.

As we have reported previously, most courts around the country have imposed some procedural barriers to plaintiffs seeking this sort of information.  Most importantly, though the particular standard varies from state to state, the majority rule is that the plaintiff must allege enough facts to establish that his or her claim has merit.  Some states have even applied a summary judgment standard to a plaintiff's claims before ordering the disclosure of an anonymous blogger's identity.

Though we do not have the text of the judge's actual decision in this case, based solely on the facts alleged in the plaintiff's motion, it is hard to imagine that the plaintiff was required to establish any facts or foundation for her possible claim.  Rather, she states, without any further explication, that Hipcheck16 said something defamatory (though what he/she said is not in the petition).  On this thin reed, the judge ordered Comcast to turn over Hipcheck16's name.

An attorney for Hipcheck16 has indicated that he may appeal the ruling, and, if he does, he will have ample case law from around the country affirming that the First Amendment protects anonymous speech and that plaintiff's must be required to meet some elevated pleading standard -- at the very minimum -- before those rights can be abrogated.

No matter what the actual standard courts eventually apply, a bare pleading that alleges defamation, with nothing more, should not be enough to outweigh a blogger's First Amendment rights.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A Texas court has ruled that the Abilene Reporter-News does not have to reveal the identities of anonymous posters who submitted online commentary concerning a murder defendant to an Abilene newspaper’s website. According to the Reporter-News, the anonymous posters’ identities had been sought by the defendant’s attorney to ensure that none of the posters were selected to sit on the jury for the murder trial, which began on June 23. 

The Taylor County District Court’s decision to protect the posters’ identities, which was issued on July 19, is one of the early applications of the newly enacted Texas shield law. (We previously reported on the Texas shield law in civil and criminal proceedings.) At least in this case and one other reported on by the Reporter's Committee for Freedom of the Press, it appears that the Texas trial courts are ably applying the statutory privilege, which just took effect in May 2009.

According to the Reporter-News’s coverage, the defendant’s attorney argued that his client’s interest in a fair trial outweighed the newspaper’s interest in protecting the identities of the posters. However, in addition to arguing that the shield law protected the commenters’ identities from disclosure, the Reporter-News also argued that the defendant’s right to a fair trial could be adequately protected by questioning prospective jurors during jury selection. 

The Texas court joins a growing number of jurisdictions that have declined to require website publishers from disclosing the identities of anonymous posters. We have covered a number of those outcomes over the past several months, including cases from Maryland and Pennsylvania. 

Although the case law in favor of protecting anonymous posters' identities from disclosure is growing, the cases are not uniformly in that direction, as pbs.org's Mediashift has recently discussed.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a case we first reported on in December, a judge in Madison County, Illinois ordered The Alton Telegraph newspaper to reveal the identity of two people who commented anonymously on the newspaper's web site.

A state prosecutor in Madison County had issued a subpeona to the Telegraph in October seeking the names of five people who had posted comments on a news story concerning a man who had been indicted for the murder of a five-year-old boy.  The prosecutor claimed that the five people may have information relevant to the investigation.  The paper sought to quash the subpoena, claiming primarily that the paper was protected by the state's shield statute because the commenters were "sources" as defined in by the law.

The judge, Richard L. Tognarelli, largely rejected the newspaper's "source" argument.  While acknowledging that no Illinois appellate court had decided the issue, Judge Tognarelli said that in this case:

[I]t is clear that the "reporter" did not use any information from the bloggers in researching, investigating, or writing the article.  In fact, none of the comments were written until after the article was published.  Comments were then made between various bloggers, between themselves, without comment, input or discussion from the reporter.  It would not appear that the bloggers were "sources" for the Telegraph news article.

The judge emphasized that the shield law ought not apply "to those individuals who voluntarily post information in a forum designed to elicit citizen's opinions in response to a newspaper article." (emphasis in original).

Finally, Judge Tognarelli held that even if the shield law applied, the state had met its burden, at least as to two of the commenters, of showing that the sources sought were "relevant" and that the state had "exhausted 'all other available sources of information.'"  In particular, a detective who testified at the hearing on the motion to quash said that the state had interviewed more than 117 people and did not have the time or money to re-interview all of them to ascertain if they were one of the commenters.

Two of  the five commenters identified in the original subpoena were found to have information that might be relevant, based on what they had said online.  The remaining three did not appear to have relevant information, the judge said, and so the motion to quash was granted as to them.

While courts across the country have been increasingly willing to quash subpoenas seeking the identities of anonymous commenters in civil cases, there is far less case law concerning criminal matters.  In March, we reported on the decision by a third-party company hosting a newspaper's comments section to comply with a request from prosecutors for the identiy of anonymous commenters who might have information relevant to a criminal investigation.

No decision has been made by the newspaper on whether to appeal the judge's ruling.

• Email This
• Print
• Comments
• Trackbacks
• Share Link