Nevada Judge Says Online News Publications Aren't Protected By The State's Journalist Shield Law

from the 'according-to-this-stuff-printed-50-years-ago...' dept

The internet has upended journalism. It’s no longer limited to long-established press outlets known for printing physical newspapers and periodicals. It can be performed by anyone, using a vast amount of resources, including search engines, public records requests, and the occasional application of shoe leather.

The First Amendment provides protection to these endeavors. Except when it doesn’t. Well-meaning legislators seeking to protect journalists use older definitions of journalism to exclude bloggers and freelancers. Some judges make the same mistake as well, deciding the word “journalist” only covers people trafficking in ink and paper, rather than bits and pixels.

This older definition was in play in a recent decision handed down by a Nevada judge. Rather than recognize that the intent of Nevada’s shield law is to protect journalists, Judge James Wilson decided the law only protects a narrow subset of those practicing the art of journalism.

Nevada shield laws don’t protect online-only news sources unless the websites are members of the Nevada Press Association. That’s the view of First Judicial District Judge James Wilson, who determined yesterday that Sam Toll, editor of an online news site, must reveal his story sources to developer and brothel owner, Lance Gilman, whom Toll has criticized.

[…]

Wilson said 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 law).”

According to the court’s interpretation [PDF] of the law, Sam Toll is only shielded from discovery requests for anything that occurred past August 2017, which is when Toll became a member of the Nevada Press Association. Seeing as the Nevada Press Association was willing to extend credentials to Toll and his site, it would stand to reason his work prior to that date was recognized as journalism. Unfortunately, the court feels the outdated definition in the state’s shield law excludes Toll from prior coverage.

Toll publishes his articles on the internet and not in any other format. He does not print his articles. The Legislature did not define “Newspaper” in NRS 49.275 or elsewhere in Chapter 49. The Legislature has defined “newspaper” in several other chapters of the NRS. It appears that under all of the statutory definitions a newspaper must be printed. For example, NRS Chapter 238, which relates to legal notices and advertisements, in 238.020, defines daily, triweekly, semiweekly, weekly and semimonthly newspapers. All of the definitions in NRS 238.020, and apparently throughout the Nevada Revised Statutes, include that a newspaper is printed.

The shield law was enacted in 1969, when printing was the only means of distribution. Its only other update followed six years later. The Reporters Committee for Press Freedom has a comprehensive rundown of the law and its applications, but this appears to be the first time the shield law has been discussed in the context of an online-only publication.

This lack of precedent hurts Toll and others like him. The state offers protections to journalists and their sources, but hasn’t addressed the issue in more than 40 years. Digging around Nevada statutes to define “newspaper” is forest-for-the-trees thinking which results in the completely expected outcome: a newspaper is printed. But journalism isn’t limited to newspapers and it hasn’t been for a long time. The state also protects news broadcasters who don’t offer anything in print. The court’s failure to consider an online news source as the digital equivalent of either of the news sources is short-sighted and it’s going to keep causing problems until the state’s courts or legislators fix this.

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Comments on “Nevada Judge Says Online News Publications Aren't Protected By The State's Journalist Shield Law”

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35 Comments
Anonymous Anonymous Coward (profile) says:

How narrow can he get?

Given that the judge’s definition doesn’t take TV, Cable, or Radio broadcasters into account, I wonder how he feels about articles that appear on dead tree media’s websites but never make the print edition?

The 1st Amendment talks about ‘the press’ and some argue that means people with printing presses and not journalism in general. That argument left when broadcasting came into being (and was given the protections), first with radio, then with TV, and later with cable. That this judge doesn’t understand that it is the activity, rather than the technology involved in distribution tells us how antiquated his thought process is, or that he has some relationship with Lance Gilman that he would rather not be disclosed.

Anonymous Coward says:

Re: How narrow can he get?

The 1st Amendment talks about ‘the press’

Of course it meant the printing press, whether owned or hired, as that covers books and magazines etc. As that was the only effective means of publication back then, the natural extension in the modern age is it covers all means of publication, that is making works available to the public.

Also, nobody should be forced to reveal sources, as anybody can be a conduit for a whistle-blower.

Anonymous Coward says:

Re: How narrow can he get?

From the text of the law:

No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose…

The law specifies the media protected. It did not protect the distributors of handbills, the soap-box demagogue, nor the pulpit pundit. If it did not explicitly specify the way the news was distributed, the judge would have leeway to include internet reporting. Yes, these were the ways the media institutions distributed news. They were not all possible ways to distribute news.

Don’t like it? Talk to the legislature. They’re the ones that make laws.

Me? I don’t like it either. But the Nevada legislators are unlikely to listen to someone from another state. But no, I don’t fault the judge in this ruling.

Anonymous Coward says:

Re: Re: How narrow can he get?

The site’s "about" page says "The Teller is read by thousands every week and is a production of Gold Hill native Sam Toll." That looks "periodical" to me. And it’s a "press association" if multiple people are involved; even commenters could count if they’re adding useful information.

Anonymous Anonymous Coward (profile) says:

Re: Re: How narrow can he get?

That Nevada law may not be inclusive enough to be constitutional, per the US Constitution that is. I don’t know if it has been tested at the Federal level at all. Since the US certainly seems to have embraced technology in the progress of news distribution in the past, there is no reason to believe that it won’t embrace technology advances in the future.

There are of course reasons for those who crave power and control to want less feedback from those not constrained by compromised corporate entities. That doesn’t mean we should allow or accept those reasons.

Anonymous Coward says:

Re: How narrow can he get?

The shield law was enacted in 1969, …

And so it should also only apply to newspapers printed on types and models of presses known at the time the law was passed. I mean, how could the legislature intend it to apply to some new model of printing press that came out later in 1970 if such a model didn’t even exist in 1969? See how that works? I should be a Nevada judge!

Ninja (profile) says:

Re: How narrow can he get?

When you add "on the internet" it seems some people react by getting exponentially dumber. It’s like saying Voldemort in the witchcraft word, you have to say "He-Who-Must-Not-Be-Named" to avoid making people lose their shit. I suggest we start calling "on the internet" something like "That-Place-That-Shall-Not-Be-Named-But-Works-Just-Like-Real-World".

That One Guy (profile) says:

Looks like one, acts like one... no membership = not one

This is actually a case where the ‘looks like a duck’ test the supreme court used against Aereo actually would have been fitting. The fact that they didn’t print their stuff or weren’t members of the official press organization shouldn’t have mattered, what should have mattered was whether or not they were engaged in journalism.

Anonymous Coward says:

Re: Re: Re:

People here sure love projecting their pathetic world view onto others, as part of some ad-hominem debate tactic. They just can’t comprehend that others do not think as they do. THEY are consumed with bitterness over Article 13 passing, so they assume someone else will be similarly consumed with some invented "facts" they use to create their straw men.

It says a lot about who they are and who Masnick’s primary audience is, a large part of why mainstream journalists don’t seem to mention his name very much. Apparently Google likes to list his articles on par with other outlets who have much larger, more sophisticated audiences that don’t engage in such pettiness.

Oh wait: how would this law apply to this site? Got it.

PaulT (profile) says:

Re: Re: Re: Re:

"create their straw men"

I’m only going on the words you’ve presented to us. In those you obsess not about your readership or the product itself, but how many email addresses you have to upsell people on other products. Barring any other context that’s a con artist talking – a real creative person would at least focus on something other than their spam list.

Again, what a shame you want to destroy the careers and opportunities of so many truly creative people so that you can run a mailing list scam.

"a large part of why mainstream journalists don’t seem to mention his name very much"

Link to where they mention your name. I have a feeling the reason why you’re anonymous is because revealing your identity would confirm how much of a miserable failure you are.

Anonymous Coward says:

Re: Re: Re: Re:

“People here sure love projecting their pathetic world view onto others, as part of some ad-hominem debate tactic. They just can’t comprehend that others do not think as they do. THEY are consumed with bitterness over Article 13 passing, so they assume someone else will be similarly consumed with some invented "facts" they use to create their straw men.”

That’s some inception level of projection Jhon boy.

Ngita (profile) says:

I did not realise this was not yet precedent

You sometimes see youtube personalities faced with if you don’t have press credentials your not press.

Or even worse if your not registered with the x organisation as press, your not press and if do the "wrong" thing like ask pesky questions of the city council oops you are no longer registered.

Uriel-238 (profile) says:

Re: YouTube news and live-streamers

At the time of the Furguson Unrest the best way to figure out what was going on (I found) was to tune into two or three live-streaming press correspondents. They didn’t have special legitimacy besides some basic business signing and that they were actively live streaming the events.

The police weren’t sure what to do about that exactly. In one case, they credentialed their way out of being arrested as rioters, in another case, the press were being rounded up to be contained in a press zone. It was also fascinating given that small live-stream crews were still rare, and the police were commonly collecting cameras or phones if they thought they could suppress video. They were unsure what to do when their behavior was being broadcast straight away into the public.

Generally it was a night of watching police at their worst, though that’s not to say their behavior has improved since Ferguson.

DannyB (profile) says:

Imagine days past

A radio news program is not real journalism, because it is not a newspaper.

A TV news program is not real journalism, because it is not a radio news program.

An online news program is not real journalism, because it is not a TV news program.

The government should not trumple the rights of any journalists regardless of their publication medium.

Anonymous Coward says:

Let's ask NPR how they reveal their sources

As others have said, what does this judge feel about NPR? And when did they join the Nevada Press Association? And I bet they’re only an associate member, since it’s a two tier membership system.

Regular or associate
new_logo smallestThere are two types of membership — regular and associate. Regular membership is reserved for newspapers qualified to print public notices, as defined by Nevada Revised Statutes 238.030 and 238.040. A key factor is whether your publication has a periodicals permit from the U.S. Postal Service establishing its paid circulation.

Everybody else falls under the category of associate member. The differences aren’t many, and they have to do with the governance of the NPA itself. In short, regular members are eligible to serve on the board of directors and have a vote at the annual meeting. Associate members have one member on the board and one vote at the meeting.
[/quote]

Regulatory capture is a fun thing!

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