State Trial Courts Hold Shield Laws Protect Anonymous Reader Comments on Web Sites

Illinois Paper Cites Shield Law, Refuses to Expose Anonymous Commenters

State trial courts in Montana and Oregon have held that their respective statutory shield laws protect the identities of anonymous online commenters who participate in discussions on newspaper Web sites. Meanwhile in Illinois, a third newspaper has invoked the Illinois shield law to fight a subpoena seeking the identity of five anonymous commenters.

Montana Decision

In Montana, Russ Doty, a 2004 candidate for Public Service Commission, sued his opponent, Brad Molnar, for libel and slander related to the campaign. Doty alleged in his suit that negative comments posted on the Billings Gazette’s Web site by commenters “CutiePie” and “Always wondering” were actually submitted by Molnar using pseudonyms, the Gazette reported Sept. 3, 2008.

Molnar denied the accusations, but Doty nevertheless issued a subpoena in July 2008 to the newspaper, not a party to the suit, arguing that he had a right to “test whether or not Molnar is telling the truth,” the Gazette report said. Alternatively, Doty argued that even if “CutiePie” and “Always wondering” did not turn out to be Molnar, they could still serve as important witnesses on the issue of reputation damage.

The newspaper moved to quash the subpoena, arguing that the state’s Media Confidentiality Act, Mont. Code Ann. sectionsection 26-1-901–903, authorizes the newspaper to protect the identities of the commenters in the same way the statute protects confidential sources and reporters’ work product from compelled disclosure, the Gazette reported.

The Media Confidentiality Act provides absolute protection for news organizations and people “connected with or employed” by news organizations to withhold “any information obtained or prepared” by the organization or person “if the information was gathered, received, or processed in the course of his employment or its business.” The statute also protects anonymous sources of information from compelled disclosure.

Martha Sheehy, an attorney for the newspaper, argued at the September 3 hearing that unpublished information about the anonymous commenters was protected by the statute, the Gazette report said. Sheehy argued that it should not matter where or how the information is published for the purposes of the shield law.

Sheehy supported her argument with an affidavit from Gazette Editor Steve Prosinski. The affidavit said that online comments are a critical component of the service the newspaper provides to its readers and that they serve the public by “fostering democratic discourse through communities of users,” the Gazette report said.

Prosinski also said that the newspaper did not know the identity of the commenters, only their e-mail and Internet Protocol (IP) addresses. The IP address, however, could be used to trace the posts to a specific computer or computers.

Doty argued that the commenters should not be protected by the statute because their comments are not “news,” the Gazette report said. “The scope of the statute is to shield the news media from disclosing ‘news’ sources or any information obtained or prepared” during the news gathering process, Doty wrote in a brief. “Blogs and online comment simply are not ‘news.’ Therefore, the persons who comment are not protected by a statutory privilege.”

District Court Judge G. Todd Baugh agreed with the Gazette, holding the Media Confidentiality Act authorizes the newspaper to protect information about the commenters from compelled disclosure. Baugh issued no written ruling. The civil libel suit is Doty v. Molnar, DV07-22 (Mont. 13th Jud. Dist. 2008).

Sheehy told the Reporters Committee for Freedom of the Press (RCFP) in a September 4 story that she was pleased with the result. “There are similarities between old and new technology,” she said. “If a person’s speech is anonymous in the printed newspaper, the statute protects it. This is anonymous speech in a different form.”

But a commenter purporting to be “Russ Doty” called the ruling a blow to the type of thoughtful and credible commentary that should be protected by the shield law, in a post attached to a Sept. 4, 2008 Gazette story about the case. “I am … deeply troubled by the outcome because of the absoluteness it conveys and because while it may not chill the speech of folks who libel with abandon, it chills the speech of persons who would post openly under their own name.”

Doty argued the ruling would encourage people to post anonymously rather than in their own names, and consequently reduce the credibility of online discussion forums.

Oregon Decision

A state trial court judge in Oregon ruled Sept. 30, 2008 that two Oregon newspapers do not have to turn over information about an anonymous reader who commented on similar stories published separately on the Portland Mercury and Willamette Week Web sites.

The original story in the Portland Mercury was posted on Jan. 31, 2008 and discussed mayoral candidate Sho Dozono’s bid for public financing for his campaign. In the comments section, a reader named “Ronald” announced his support for Dozono, but only because the candidate had severed ties with businessman Terry Beard. “Ronald” called Beard a “cantakerous [sic] obnoxious dishonest new money pig” who mistreated his employees.

Beard, upset about the comments, filed suit against “Ronald” and subpoenaed the two newspapers seeking information about the anonymous commenter, the Portland Mercury reported October 1. But Judge James E. Redman ruled that the state’s shield law, Or. Rev. Stat. sectionsection 44.510–540, protected the identity of the commenters from compelled disclosure.

Oregon’s shield law provides that “No person connected with, employed by or engaged in any medium of communication to the public … shall be required … to disclose” the identity of a confidential source or 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.”

Beard had argued that the shield law was inapplicable. Although it protects unpublished information, he contended that it was only designed to protect such information if it was produced as part of the news gathering process. But Redman disagreed.

“It would seem clear that Oregon’s Media Shield Law is intended to have a wider scope than ‘news gathering,’” he wrote in his ruling, issued to the parties’ attorneys in a Sptember 30 letter. “Ronald”’s post was related to the story and therefore “the argument could be made that the Portland Mercury [received it] in the ‘course of gathering, receiving, or processing information for any medium of communication to the public.’” The ruling is available online at http://www.citmedialaw.org/threats/beard-v-portland-mercury#description.Beard’s libel suit is Doe v. TS et al, CV 0803693, (Clackamas, County Ct., Or. 2008).

Redman’s ruling left open the possibility that a comment completely unrelated to the posted story could fall outside the scope of the statute and would therefore be unprotected.

“Long story short: We won. And therefore, so did you, dear anonymous Blogtown commenters,” Editor Amy J. Ruiz wrote in an October 1 post about the ruling. But Ruiz warned readers to follow the newspaper’s comment policy and keep their posts on topic to ensure their identities remain protected. “We’re all for going to court to protect anonymous free speech, but keep our comments policy in mind,” she wrote.

Illinois Case

The Alton Telegraph refused to turn over information about five anonymous commenters to state prosecutors October 2, arguing that the Illinois shield law provides protection for anonymous informers whether they pick up the phone, send a message in the mail, or comment on a blog.

According to an Oct. 17, 2008 story in the Belleville News-Democrat, the Telegraph received a subpoena seeking information about the commenters from a grand jury conducting a murder investigation. The subpoena gave the Telegraph until October 2 to respond, but the newspaper declined to do so and instead moved to quash the subpoena citing the state’s shield law, 735 Ill. Comp. Stat. 5/8-901–909.

The Illinois Privilege Statute provides “No court may compel any person to disclose the source of any information obtained by a reporter … .” The statute allows judges to override the privilege if the party seeking the identity of the confidential source provides a written application setting forth “a specific public interest that would be adversely affected” if the information were not disclosed. The statute also provides several factors for judges to consider including “the nature of the proceedings, the merits of the claim or defense, the adequacy of the remedy otherwise available, if any, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove.”

In order to override the privilege, the court must find that all other sources of information have been exhausted and disclosure of the information is essential to the public interest.

According to the News-Democrat report, Don Craven, an attorney for the Illinois Press Association, said the case would be an “interesting mess,” but the court should hold that the identities of the anonymous commenters are protected by the shield law. “The newspaper is entitled under the Reporters’ Privilege Statute to maintain the confidentiality of source information,” he said. “Even though they may disclose the information itself in an article, they are nonetheless entitled to maintain the confidentiality of that source.”

But Prosecutor Bill Mudge said in the News-Democrat story that the commenters have information that could aid the murder investigation. Mudge declined to comment specifically about the information the commenter might have, but the Telegraph wrote in its motion to quash the subpoena that some comments referred to crimes allegedly committed by the murder suspect in the past.

– Michael Schoepf
Silha Fellow

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This page contains a single entry by cla published on October 14, 2009 11:24 AM.

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