In a unanimous decision Thursday, the Nevada Supreme Court ruled that journalists writing for digital publications are protected from revealing their sources. The ruling expands the state’s media shield law, which has not been updated since 1975 and did not contemplate the Internet.
The ruling overturned a lower court decision earlier this year that suggested the law did not protect online publishers in the same way that it protected newspapers. Media industry groups and media law experts said the ruling was flawed and placed significant restrictions on a law that was intended to protect First Amendment speech, whether or not it was made online.
The Supreme Court concluded “that one can ‘print’ in more than one way.”
“Just because a newspaper can exist online, it does not mean it ceases to be a newspaper,” Chief Justice Mark Gibbons wrote in the court’s opinion. “To hold otherwise would be to create an absurd result in direct contradiction of the rules of statutory interpretation.”
The case in question arose after an online publisher, Sam Toll, was asked to reveal his sources about reporting that questioned whether Storey County Commissioner Lance Gilman resided in the county. Gilman, who owns the Mustang Ranch brothel and claims to live there, sued Toll for alleged defamation. During the course of the litigation, Gilman asked the court to compel Toll to reveal his sources for the claim, claiming the shield statute did not protect an online blogger.
Toll publishes an online publication, The Storey Teller.
In March, Carson City Judge James Wilson granted Gilman’s request to compel. Because the statute says the shield law privilege applies to “any newspaper, periodical or press association,” Wilson reasoned that Toll was not covered until he paid to join the Nevada Press Association.
Media law experts cast the decision as harmful to a free press, noting that the narrow reading could put a chilling effect on the news gathering process for freelancers, documentarians and online publications. Their sources might fear retaliation and be less likely to share information.
Toll asked the Supreme Court to weigh in.
Press groups, including the Nevada Press Association, the Reporters Committee for Freedom of the Press, the Online News Association and Reporters Without Borders, filed briefs before the Supreme Court in support of Toll’s argument — that the law should protect his reporting.
On Thursday, the Supreme Court said that the district court erred by granting Gilman’s request that Toll reveal his sources. The court said denying the media shield law cannot be based on reasoning that there is a difference whether news is printed online or in a physical medium.
Patrick File, a UNR professor studying media law, said that finding was broadly significant.
“It’s clarity on a question that clearly needed some clarity,” File said.
In the specific case, litigation is likely to continue. The Supreme Court refrained from making a determination about whether The Storey Teller itself qualified for protection under the shield law.
Instead, the court said the way that Toll publishes his reporting — online — is not a valid reason to disqualify a publication from invoking the shield law. The Supreme Court directed the District Court, under the new ruling, to re-analyze Gilman’s motion to compel Toll to reveal his sources.
“While we decline to resolve whether or not a blog falls under the definition of a newspaper, we conclude that a blog should not be disqualified from the news shield statute...merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form,” Gibbons wrote.
Toll invoked the shield law during a deposition. The district court issued an order allowing Gilman to conduct limited discovery to determine whether the comments met the standards for proving a defamation claim. Toll had also challenged that order before the Supreme Court.
The Supreme Court denied Toll’s challenge.