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Professor Tries To Get Info On Newspaper Commenters

from the shield-laws dept

Mon, Jun 8th 2009 10:09pm — Mike Masnick

There have been a bunch of lawsuits lately testing the boundaries of various "shield laws" that protect journalists from having to give up information on sources. There was one recent case that found that even comments on online newspaper articles could be protected by shield laws, as those commenters represented a source. However, a professor in Montana is suing to try to find out the identity of some commenters on a local news article (found via Citizen Media Law Group). The professor had recently lost a lawsuit, and believes that one of the commenters was on the jury -- and that particular comment (which was posted before the case was decided) suggested he had done independent research and believed information (that was false) in making his decision. So, in seeking a new trial, the professor wants the identity of the commenter in question. Attorneys for the professor claim that the juror admitted to writing the post in an affidavit, though the juror now says he did not. Either way, apparently the strong shield laws in Montana mean that the newspaper probably won't have to give up the info.

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Filed Under: comments, journalism, newspapers, shield laws

9 Comments

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Shaun W, 9 Jun 2009 @ 1:18am

I'm a bit conflicted
I certainly think shield laws are an important part of protecting free speech however this could be a real problem if the commenter was actually a jury member. I think a good argument could be made that the info should be released to the judge (or a different judge) to check if the commenter was a jury member, assuming there is a real reason to think they might be. If they were a jury member then the judge declares a mistrial if not then the judge doesn't but either way it goes no further than the judge. I'm not sure that this is good enough but I believe that it is the only condition that it might be.
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Kevin, 9 Jun 2009 @ 3:54am

Re: I'm a bit conflicted
What's the point? The purpose of a shield law is to shield sources and protect them, not shield them from the general public. Forcing them to give up a "source" to "just the judge" is the same as if the shield law doesn't exist at all. Saying that a journalist can be forced to reveal sources to a judge and then let the judge decide what to do with it is no shield law at all because it does NOTHING to protect the source.

Dumbass!
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Anonymous Coward, 9 Jun 2009 @ 5:34am

This is a case where the commenter should be identified to make sure that there wasn't leage wrongdoing. This could easily be accomplished through a blind that would allow law enforcement to investigate without the name of the poster being given directly to to the complainant.

There is potential the justice was not served, which is very important.
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JohnRaven,CHT,CSH (profile), 9 Jun 2009 @ 6:04am

Think of the Children...
Sure... it sounds so seductive. Just give in... this one time. Go ahead, ignore the shield laws. Give up the name of the EVIL JUROR. It's just one time... right? We can stop after just one... can't we?

Kevin is right. The laws are there to protect sources. This allows reporters... ESPECIALLY investigative reporters to do some high power articles on everything from corruption to consumer fraud.

If their sources know that they can be revealed to "just a judge", how do you think they're going to feel about coming forward to tell me the truth about what's going on say... at a daycare where kids are being abused, or a restaraunt where they are using inferior meat, etc?

That's asking to give up attorney-client privledge.... just this one time. Which is always fine... unless it's the one time that affects you.
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Matt Bennett, 9 Jun 2009 @ 7:57am

Man, I'm all for shield laws, but if ever there was a good case for giving up someone's indentity.....
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OldGeek, 9 Jun 2009 @ 9:33am

Tough Luck
If the poster was on an active jury, and they are posting about the case, then they are in direct contempt of court for not following jury instructions.

When your sworn in as a member of a jury if you don't follow the judges instructions you open yourself up to all sorts of trouble. I don't see this as a freedom of speech issue, as an active jury member you don't have that right until the case is finished.

All this did was taint the jury and needs to be ruled a mistrial and I feel the one responsible should be jailed for contempt of court.

So I guess we throw away the right to an unbiased trial so people can break the law because they aren't responsible enough to follow some simple instructions????
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Anonymous Coward, 9 Jun 2009 @ 10:27am

Constitution vs. State law...
The thing at issue is the identity of the person behind the user name that posted a comment about a news article on the paper's web site, not a confidential source providing information to a reporter. The comment was posted on a public web site for all to see with a user name that implicates one of the jurors. Basically, the paper is refusing to reveal the person associated with a specific user name.

Based on the wording of the local law (cited in the article), they can probably avoid doing what any other web site owner would have to do, which is reveal the identity of the poster. The legal question is whether the local law is interfering with the right to petition for redress and to a fair trial guaranteed in the Constitution (and applied to the states by the 14th amendment). Last I heard, the Constitution trumps local law.

If this was a newspaper revealing a confidential source, I'd be a little more concerned, but this is a web site, that happens to be operated by a newspaper, refusing to reveal the identity of a poster on a public comment board.
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Jason, 9 Jun 2009 @ 11:03am

Re: Think of the Children...
That's all fine and good when you're talking about a confidential source.

BUT a commenter on a website is giving the information voluntarily without any reporter offering source confidentiality. This isn't ignoring the law. This is saying it shouldn't apply to what it was never meant to apply to.
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Lance (profile), 10 Jun 2009 @ 7:25am

The right to confront...
The idea behind shield laws may sound good on the surface, but it is fraught with the danger that justice may be subverted.

If I understand the idea behind shield laws properly, they are meant to encourage a person that might be witness to, or have first hand knowledge of, criminal activity to come forward with his/her testimony. Whether that testimony is given in a court room, in the pages of a newspaper, or on a website, the underlying principals seem to be...
1. They are protected from direct confrontation
2. They are in direct knowledge of the activity being reported

The case here is about a "reporter" of information who may, or may not, have that direct knowledge. If the "reporter" was impaneled on the jury hearing the professor's case then one of the following two situations should apply...
1. If the juror had direct knowledge that applied to the case then he/she should have informed the court that this direct knowledge existed and been excused.
2. If the juror didn't have direct knowledge then his/her statements would be hearsay. Persons making those kinds of statements should not be accorded the protection provided by shield laws.

In order to determine whether either of the two scenarios applies, someone must be able to determine whether the "reporter" was a person impaneled on the jury. Shield laws should not be able to be used to thwart justice by preventing the courts from determining if a participant in the justice system is actively doing things that may undermine it.

Of course all of my above statements are premised on my own thoughts and ideas regarding the use of shield laws. They have no legal standing, as I have no standing as a practitioner in the field of law.
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