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Nevada Shield Law Protects Online Journalists

By Leo Wolpert

In Toll v. Wilson et al., 135 Nev. Adv. Op. 58 (Dec. 5, 2019), the Nevada Supreme Court recently addressed the scope of Nevada's broad news shield statute, NRS 49.275. The Court, in keeping with a history of reading the shield law broadly, held that authors of digital media such as bloggers are reporters, that a media source does not have to be physically printed in order to qualify as a "newspaper," and therefore bloggers may be protected from mandatory disclosure of confidential sources.

The Toll case was a writ proceeding concerning Sam Toll, who runs The Storey Teller, an online blog that reports on current events in Virginia City, Nevada. Toll published articles critical of Storey County Commissioner Lance Gilman, specifically alleging that Gilman did not actually live in Storey County.

Gilman sued Toll for defamation per se. Toll moved to dismiss the suit under Nevada's anti-SLAPP statute, NRS 41.660. The district court allowed for limited discovery, resulting in Gilman deposing Toll. When questioned as to why he believed Gilman did not live in Storey County, Toll relied on information provided to him by anonymous sources. When asked to reveal those sources' identities, Toll refused to do so, invoking Nevada's news shield statute (NRS 49.275). That statute protects any "reporter, former reporter or editorial employee." However, to be protected, a journalist must also be affiliated with a "newspaper, periodical or press association or ... radio or television station"

Gilman filed a motion to compel Toll to reveal his sources. The district court granted this motion, reasoning that while Toll is a reporter, he was not a member of a press association at the time he made the comments, and that his blog did not alternatively qualify as a newspaper because it is not printed in physical form and therefore the news shield statute did not apply to him. Toll moved for writ relief from the Nevada Supreme Court, arguing that the district court erred by both allowing for discovery in the first place and by granting Gilman's motion to compel. (Although this is not the focus of this article, the Nevada Supreme Court upheld the district court's decision to allow discovery pursuant to Nevada's anti-SLAPP statute under an "abuse of discretion" standard.)

Nevada Supreme Court Decision

In a unanimous decision, the Nevada Supreme Court reversed the district court's grant of the motion to compel.

First, the Nevada Supreme Court agreed with the district court that Toll was a reporter, noting that Toll "reports various public events, opinions, and current news in Virginia City" and that "[t]his qualifies him as a reporter."

Second, the Nevada Supreme Court held that a reporter who publishes on 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 ink-printed, physical form." The Nevada Supreme Court looked to analogous Fourth Amendment precedent to interpret the news shield statute in a way that comports with technological advances. In Kyllo v. United States, 533 U.S. 23 (2001), the United States Supreme Court held that thermal imaging—a technological advance the Constitution's framers could never have imagined—constituted an unreasonable search without a warrant.

Similarly, in Toll, the Nevada Supreme Court reasoned that while the Nevada legislators who crafted the news shield statute in 1975 "knew what a newspaper was, they likely did not contemplate it taking digital form." Thus, the Nevada Supreme Court held that online newspapers were protected by the shield statute.

Broadly reading the news shield statute is consistent with its underlying purpose and broad scope. The Nevada statute "confers upon journalists an absolute privilege from disclosure of their sources and information in any proceeding in order to enhance the newsgathering process and to foster the free flow of information encouraged by the First Amendment to the U.S. Constitution." Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court of State ex rel. Cty. of Clark, 129 Nev. 878, 882–83, 313 P.3d 875, 878 (2013) (citations and internal quotation marks omitted).

The story is not over in the underlying litigation. While reversing the district court's grant of Gilman's motion to compel and determining that publishing an online-only publication did not, in and of itself, take a reporter outside the protections of the shield statute, the Nevada Supreme Court remanded the case to the district court for further proceedings regarding other factors of the NRS 49.275 test. For instance, the district court could still hold that the news shield statute does not apply to Toll because his sources were not "obtained or prepared by such person in such person's professional capacity in gathering, receiving or processing information for communication to the public."

Regardless of the eventual outcome of this case, the Nevada Supreme Court's ruling is a victory for Nevada's news shield statute and the First Amendment. It is heartening that our courts are willing to advance along with technology by reading statutes in a way that broadens rather than circumscribes the First Amendment rights of journalists.

Leo Wolpert is an associate at McLetchie Law in Las Vegas, NV. Margaret A. McLetchie of the firm represented Nevada Press Association, Reporters Committee for Freedom of the Press, News Media Alliance, Online News Association, Media Institute, Society of Professional Journalists, and Reporters Without Borders as Amici Curiae.

 
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