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.

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The United States Supreme Court's recent decision  in U.S. v. Stevens, which invalidated on First Amendment grounds a federal statute criminalizing the commercial creation, sale, or possession of a "depiction of animal cruelty," has been widely discussed in the media and blogosphere.  In Stevens, the Court held 8-1 that the so-called "dog-fighting" statute was, on its face, unconstitutionally overbroad.  In so holding, the Court declined the government's invitation to create a new category of speech that did not enjoy First Amendment protection.

Our purpose here, however, is not to rehash the details of that case (for a terrific rundown of the facts and holding, read this post from Lyle Denniston at Scotusblog).  Rather, our interest is in explaining why members of the media should care about a dog-fighting decision.

Stevens matters -- or should matter -- to journalists for two reasons.

First, it invalidated a law that, read broadly, could have created criminal liability for a television news show discussing dog fighting that included footage of an actual dog fight.  While the statute had a savings clause that exempted "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value," the Court held that the First Amendment does not countenance government prosecutors passing judgment on what has "serious journalistic value."

Chief Justice Roberts, writing for the Court, did not buy assurances from the government that the statute would be interpreted narrowly.  He wrote that the government "offer[ed] no principled explanation why" certain depictions of Spanish bullfighting would be "inherently valuable" while certain depictions of dog fighting would not.

More broadly, Stevens matters to journalists because the Court -- almost unanimously -- denied in extremely strong language the government's attempt to create a whole new category of speech (depictions of animal cruelty) that could be criminalized based on a "balancing of the value of the speech against its societal costs."

The Court held:

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

To understand the importance of that holding, imagine a scenario where every category of speech could be proscribed if the government or a court did not think its value outweighed its potential harm.  Would broadcasters be forced to defend the societal value of their latest "reality TV" offering?  Could newspapers be barred by law from publishing any article whose societal value was not deemed sufficient?  The reach of such an outcome would have been breath-taking.

As the Court pointed out -- and as journalists are all too aware -- much (if not most) speech has little or no true "societal value."  Nonetheless, such speech has always enjoyed First Amendment protection unless it fell into one of a very small number of historically recognized exceptions (obscenity, defamation, fraud, incitement, or speech integral to criminal conduct).

By drawing a firm line in the sand, the Court affirmed that journalists will continue to retain broad discretion under the First Amendment to publish what they think has value -- whether or not the government or a court might disagree.

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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.

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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.

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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.

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On April 2, the Fourth Circuit ruled that a former Baltimore Police Department officer’s Section 1983 civil rights claim based on violations of his First Amendment rights may proceed.  The Fourth Circuit reversed and remanded the district court’s order dismissing the freedom of speech claim.  Specifically, the Fourth Circuit held that the plaintiff alleged facts sufficient to pursue his claim that the defendants, including the current and former police commissioners, violated the plaintiff's First Amendment rights by retaliating against him for releasing an internal memorandum to a reporter for the Baltimore Sun.

In Andrew v. Clark, No. 07-1184, slip op. (4th Cir. Apr. 2, 2009), the plaintiff (Andrew) was a major in the BPD and was on the scene and on duty during an incident in which a BPD tactical unit shot and killed a suspect who had killed his landlord and barricaded himself in his apartment.  Andrew was not the senior officer on the scene, and he questioned whether the incident had been properly handled because the suspect had no hostages and had not threatened additional violence.

In his Complaint, Andrew alleged that after the shooting he repeatedly asked to be included in an internal review and investigation of the incident, but was not.  Andrew alleges he then submitted to former BPD police commissioner Clark a memorandum that requested an investigation to determine whether the use of deadly force by the BPD tactical unit against a barricaded suspect was justified and properly conducted.  Andrew contends his memorandum was ignored.  Out of his “concern for public safety,” Andrew says he then released the memorandum to a reporter for the Sun, who reported on the memorandum and the incident.  Ultimately, the BPD terminated Andrew’s employment.

Much of the Fourth Circuit opinion focused on whether Andrew had alleged sufficient facts to assert that he did not write the memorandum as a duty of his employment as a BPD officer.  This fact was important because of limitations on public employees’ freedom of speech rights. The law related to speech by public employees is set out, in part, in Garcetti v. Ceballos, 547 U.S. 410 (2006), and was discussed by the Fourth Circuit:

In setting forth the basis for its conclusion that Andrew had failed to assert facts that would support a claim for a violation of his First Amendment rights, the district court accurately summarized the rule announced in Garcetti as follows: "[w]hen public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes and therefore are not insulated from ‘managerial discipline’ based on such statements." The district court failed, however, to recognize that the Supreme Court also stressed in Garcetti that "the parties in this case do not dispute that [the plaintiff] wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework of the scope of an employee’s duties in cases where there is room for serious debate." Accordingly, because the parties do not agree that the facts demonstrate that Andrew wrote his memorandum as part of his official duties, contrary to the district court’s conclusion, the facts alleged in Andrew’s second amended complaint do not "render Garcetti wholly applicable." At this stage of the proceedings in this matter, we must conclude that there is "room for serious debate" regarding whether Andrew had an official responsibility to submit a memorandum regarding the Smith shooting. (citations omitted)

The evidence in the record at this stage of the case—the motion to dismiss stage—asserted that Andrew was under no duty to write the memorandum.  (The district court wrote that Andrew conceded that writing the memorandum was part of his job, but at oral argument, defendants’ counsel told the Fourth Circuit panel that was not so.)  Therefore, according to the Fourth Circuit, Andrew’s speech may be protected by the First Amendment, subject to the requirements of Pickering v. Board of Education, 391 U.S. 563 (1968).  Whether Andrew could show that the speech was “citizen speech” about a matter of public concern or whether the publication of the memorandum “affected the operation of the BPD,” as required by Garcetti and Pickering, had not been answered by the district court and could be tested upon summary judgment motions.

It remains to be seen whether Andrew’s release of the memorandum to the Sun will be considered protected speech—stay tuned.

The concurring opinion authored by Judge Wilkinson does an excellent job of putting the Andrew opinion in context and explains why the outcome at this stage is a win for the media.  Here is a excerpt (but we recommend you read the entire concurrence):

To throw out this citizen who took his concerns to the press on a motion to dismiss would have profound adverse effects on accountability in government. And those effects would be felt at a particularly parlous time. It is well known that the advent of the Internet and the economic downturn have caused traditional news organizations throughout the country to lose circulation and advertising revenue to an unforeseen extent. As a result, the staffs and bureaus of newsgathering organizations—newspapers and television stations alike—have been shuttered or shrunk. Municipal and statehouse coverage in particular has too often been reduced to low-hanging fruit. The in-depth investigative report, so essential to exposure of public malfeasance, may seem a luxury even in the best of economic times, because such reports take time to develop and involve many dry (and commercially unproductive) runs. And in these most difficult of times, not only investigative coverage, but substantive reports on matters of critical public policy are increasingly shortchanged. So, for many reasons and on many fronts, intense scrutiny of the inner workings of massive public bureaucracies charged with major public responsibilities is in deep trouble. . . . [T]he First Amendment should never countenance the gamble that informed scrutiny of the workings of government will be left to wither on the vine. That scrutiny is impossible without some assistance from inside sources such as Michael Andrew. Indeed, it may be more important than ever that such sources carry the story to the reporter, because there are, sad to say, fewer shoeleather journalists to ferret the story out.

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