Nevada's Top Court Says The State's Journalist Shield Law Also Applies To Bloggers

from the not-just-for-papers dept

Some good news for journalists in Nevada, via FourthAmendment.com. A decision made earlier this year by a state court has been reversed, resulting in an expansion of the protections offered by the state's journalist shield law.

In March, Judge James Wilson -- overseeing a defamation lawsuit filed by Storey County Commissioner Lance Gilman against blogger Sam Toll -- decided the journalist shield law only protects journalists who work for printed newspapers. While it acknowledged the 1969 law also covers television journalists, it refused to extend these protections to Sam Toll and his blog, the Storey Teller.

Toll was actually a member of the Nevada Press Association at the time he was sued, but Judge Wilson said that didn't matter because the alleged defamation occurred before he received these credentials. Wilson ordered Toll to divulge his sources. Toll challenged this decision, resulting in the state's Supreme Court letting the lower court know it can't define "journalism" so narrowly.

The decision [PDF] says the court needs to buy a few more dictionaries. The definition of "print" the lower court used isn't the only one available.

Because "newspaper" was not defined by NRS 49.275, the district court relied on the definition of newspaper in other statutes as well as in a dictionary. When examining statutory definitions, the district court found that in order to constitute a newspaper, the media source must be "printed." This was consistent with the dictionary definition of newspaper the district court used, which also stated a newspaper is "printed." Therefore, because Toll's blog was not printed in physical form, the court ruled it could not be a newspaper. However, if the district court had pursued the literal meaning of "print" further, it would have found that it could apply to digital media as well as physical form. In one dictionary, "print" is defined as "to make a copy of by impressing paper against an inked printing surface." Print, Webster's Third New Int'l Dictionary (2002). However, in another dictionary, "print" is defined as "to display on a surface (such as a computer screen) for viewing." Print, Merriam-Webster's Collegiate Dictionary (11th ed. 2020). Because "print" possesses two definitions that are equally applicable to this statute, the district court erred in limiting itself to only one.

The court then cites the Supreme Court's Kyllo decision, which expanded Fourth Amendment protections to cover intrusive searches that don't actually involve the government entering the home. In the Kyllo case, thermal imaging was used to "search" a house for occupants without actually going inside the residence. As the court points out here, protections offered by law shift over time, even if the original wording remains unchanged. If the Fourth Amendment protects against searches that don't actually involve entering the home, it stands to reason the definition of journalism goes farther than covering printed newspapers only.

While the drafters of NRS 49.275 knew what a newspaper was, they likely did not contemplate it taking digital form. But just because a newspaper can exist online, it does not mean it ceases to be a newspaper. To hold otherwise would be to create an absurd result in direct contradiction to the rules of statutory interpretation. In Kyllo, the court considered technological advancements and arrived at the conclusion that one can "search" in more than one way. See 533 U.S. at 31-33. We consider technological advancements as well and arrive at the conclusion that one can "print" in more than one way.

The court doesn't go so far as to say a blog is a newspaper, but Sam Toll and his blog shouldn't be excluded from the state's shield law just because Toll's journalistic output isn't printed on paper.

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 under NRS 49.275 merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form.

The case goes back to the lower court with Commissioner Gilman's demand that Toll identify his sources blocked. Without this, it's unlikely Gilman will be able to continue pursuing his defamation lawsuit. This decision is a win for the state's independent journalists, who are now protected by a law that hasn't been revised since 1975. "Print" isn't just ink and dead trees and hasn't been for years. The state's top court recognizes this and now the rest of the state's courts are on the same digital page.

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Filed Under: bloggers, journalism, journalists, lance gilman, nevada, sam toll, shield law