Shield?

Nevada District Judge James Wilson has ruled that the Nevada press shield law does not apply to online journalists.

The ruling came in a lawsuit by brothel and industrial park owner Lance Gilman against TheStoreyTeller.online editor Sam Toll, who ran an article asserting that Gilman is not a resident of Storey County and thus is ineligible to serve as a county commissioner. Gilman responded in part by seeking identification of Toll’s sources. Toll declined to name them. Wilson ruled that the Nevada press shield law does not protect Toll as an online journalist.

News reports said the judge found that journalists or news entities that are not members of the Nevada Press Association are not covered by the shield law. But that’s not what Wilson ruled. In fact, he wrote in his opinion that because of Toll’s press association membership, the reporter’s privilege “may apply” to Toll.

The shield law contains a list. It defines those protected as “reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station,” and Wilson similarly found that “[b]ecause Toll was not a reporter for a newspaper or press association” when the Gilman article was published, he does not have the protection of the shield law. He did not specify that a reporter or employer must be a member of the NPA. The judge mentioned the NPA specifically in another context, as a press association Toll chose to join after the article was published.

The judge’s decision may not, as Nevada Press Association director Richard Karpel and University of Nevada, Reno journalism professor Patrick File have argued, be consistent with the “spirit” of the law. But judges don’t necessarily choose to enforce “spirits” of laws. That is generally a matter for legislators, and Wilson’s ruling is clearly consistent with the letter of the law.

While judges need not address “spirit” issues, some do. In one 1998 federal case, U.S. Magistrate Judge Roger Hunt wrote, “Although this Court is not bound to follow Nevada law in determining whether a reporter should be compelled to disclose his or her sources, when dealing with purely federal issues of law, it should not ignore Nevada’s public policy, as expressed in its statute, of providing reporters protection from divulging their sources.”

The current Nevada shield law language was enacted in 1975 under the sponsorship of Washoe Assemblymember Steve Coulter. His measure revised a 1969 enactment that created the list. The internet did not yet exist in either year and so was not listed among the employers of reporters.

The 1975 enactment extended protection to unpublished information and added former reporters to its shield, a response to the jailing of former reporter William Farr, who covered the Manson family murder case for the Los Angeles Times and was ordered to name his sources for one story. He refused, but, when he left the Times, the order was renewed, and he was jailed when he again refused because the California shield law did not protect former journalists.

“I would think this [list] was sweeping enough that the judge should see that the law was intended to include these new forms,” Coulter said this week.

However, since the judge requires specificity in the list of employers and the Nevada Legislature is now in session, there is the option for legislators to add online journalism entities to that list. Bill introductions are possible until March 25, and even after that date there are provisions for new measures to be introduced.

Ink vs. electrons

Former UNR journalism professor Warren Lerude, who as Reno Gazette Journal executive editor supported and testified for Coulter’s bill, offered another route. He suggested that the judge was looking at defining a journalist instead of defining the journalist’s news entity. The law protects newspapers, Lerude said this week, and that doesn’t just mean print newspapers.

“In my view, Sam Toll’s online newspaper is a newspaper, and the shield law covers newspapers,” Lerude said. “It does not define newspapers as only in print.”

In that connection, Toll in his filing quoted a decision that he and Wilson attributed to a U.S. Court of Appeals/Ninth Circuit ruling but which actually comes from the U.S. Supreme Court opinion in Citizens United vs. FEC: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” As for the Ninth Circuit, its attitude has been described by a Los Angeles Times headline—“9th Circuit to bloggers: You’re all journalists now, kinda sorta.”

However, Toll may be trying to establish the rights of online entities under the shield law, because he seems to be avoiding being defined as a newspaper. On his website he has posted, “The Teller is not a ’newspaper’ because the NPA did not classify it as such on its website and I don’t put ink to paper.”

In addition, Wilson in his ruling said Toll offered an affidavit of former Nevada Press Association Director Barry Smith. Wilson then wrote, “Mr. Smith did not say the Storey Teller is a newspaper. In fact, he distinguishes between daily and weekly news publications on the one hand and online news services, magazines, and others, on the other hand. The court [Wilson] concludes that because Toll does not print the Storey Teller the Storey Teller is not a newspaper and, therefore, the news media privilege is not available to Toll under the ’reporter of a newspaper provision of [Nevada revised statute] 49.275.”

Gilman’s attorneys argued that because Toll has described his website’s mission as “to provide a source of irritation to the Good Old Boys who operate the Biggest Little County in the World with selfish impunity forever,” therefore “The Storey Teller is not news … the defendant is not a reporter.” That would put courts in the position of judging content. In addition, the First Amendment to the U.S. Constitution was written by the founding Congress at a time when objective journalism did not exist. All journalism of the 1700s was opinion and partisan, and frequently vicious, and the founders wanted it protected. In any event, Toll’s site currently contains reports on taxable sales in Storey County, state schools funding, and an explosion in the Delta Saloon.

Wilson’s reading of the statute could also put judges in the position of deciding what part of a reporter’s job is covered by the shield and what part is not. As Lerude points out, “Many stories that don’t make the print editions do make the online editions.” And some print stories are expanded online as events develop.

Another weakness in the Nevada shield law is that it does not cover freelance journalists. At the time that the 1975 changes were made in the law, there was news coverage of a university professor in another state who was writing a book and claimed a confidentiality source privilege. There was some concern in the Nevada Legislature, including on Coulter’s part, about the list defining journalists becoming unwieldy. But in ensuing years, the ranks of freelancers have grown sharply, fostered by online journalism.

In 2014, the Technological Crime Advisory Board in the state attorney general’s office drafted language that would have extended the shield to “any medium of expression that currently exists or shall exist in the future.” But the draft was not introduced at the 2015 Nevada Legislature. It is not known why, but in the 2014 election, both houses of the Nevada Legislature went Republican and the attorney general’s post was won by Republican Adam Laxalt.

The dispute is attracting considerable attention. Courthouse News Service, a widely-read, Pasadena-based website reported the case under the headline, “Who Is a Journalist? In Nevada, It’s Complicated.”

In a reader comment posted at Nevada Current, Toll said, “I now face the unenviable position of being forced to roll on confidential sources or going to the hoosegow. What would you do?”

Wilson’s ruling will be appealed.