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Federal Court Rulings Differ on Branzburg Interpretation, Reporter's Privilege

The question of whether journalists or other information gatherers may refuse to reveal confidential sources of information remains a controversial and unsettled legal issue. In summer 2012, two federal court rulings offered differing interpretations of the U.S. Supreme Court’s only case to directly consider the question: 1972’s Branzburg v. Hayes. Meanwhile, news publishers of various types — professional and amateur, traditional and digital — confronted subpoenas for confidential or unpublished information.

First Circuit Rejects Academics’ Claim of Privilege for Confidential IRA Interviews

On July 6, 2012, the 1st Circuit U.S. Court of Appeals in Boston rejected two scholars’ attempts to block a subpoena for audio recordings held in a Boston College archive that Northern Irish police are seeking as part of an investigation into a 1972 abduction and death. In the opinion of the unanimous three-judge panel, Judge Sandra Lynch wrote, “the choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.”

The court ruled that the researchers’ appeal failed for three reasons: because they could not assert any private rights under a “mutual legal assistance treaty” between the United States and the United Kingdom; because federal courts are unable to review the actions of the U.S. Attorney General under the terms of the treaty; and because, according to the U.S. Supreme Court’s holding in Branzburg v. Hayes, 408 U.S. 665 (1972), the researchers could not claim a First Amendment-based privilege to refuse to hand over the recordings. United States v. Moloney, No. 11-2511 (1st Cir. July 6, 2012) and Moloney v. Holder, No. 12-1159 (1st Cir. July 6, 2012)

The recordings at issue are part of The Belfast Project, an oral history project that includes interviews with dozens of participants in the Irish political, ethnic, and religious conflict that began in the late 1960s, commonly known as “The Troubles.” Between 2001 and 2006, Boston College researchers led by Irish journalist and author Ed Moloney and historian and former Provisional Irish Republican Army (IRA) paramilitary member Anthony McIntyre interviewed members of rival paramilitary groups involved in the conflict, including the Ulster Volunteer Force (UVF) and the Provisional IRA. As described by Lynch, “the purpose [of the project] was to gather and preserve the stories of individual participants and provide insight into those who become personally engaged in violent conflict.”

The Belfast Project’s archives, including recordings of the interviews, are held at Boston College’s John J. Burns Library of Rare Books and Special Collections, and are subject to what the court described as “extremely limited access.” According to the court, Moloney and Boston College struck an agreement that required interview subjects to be given contracts that guaranteed the confidentiality of the records “to the extent American law allows.” Many of the 41 interviewees agreed to speak with researchers with the guarantee that the recordings would be made public only after their death, or with their permission. Lynch’s July 6 opinion noted that unlike the agreement between Moloney and Boston College, the contracts the interviewees signed guaranteed secrecy but not “confidentiality,” and made no mention of the terms being subject to “American law.”

In 2010, Moloney published a book titled Voices from the Grave, which was based on interviews with two key participants in rival factions who had recently died, Brendan Hughes of the Provisional IRA and David Ervine of the UVF. An award-winning documentary with the same name as the book was also released. In his interview, Hughes claimed that prominent Northern Irish politician Gerry Adams was a leading figure in the Provisional IRA and in 1972 commanded a group to abduct and kill Jean McConville, a single mother of 10 children who was alleged to be a British informant. Adams has denied ever being a member of the IRA.

In May and August of 2011, a commissioner appointed by the U.S. Attorney General under the “U.S.-U.K. Mutual Legal Assistance Treaty” and 18 U.S.C. § 3512, a federal statute which governs “foreign requests for assistance in criminal investigations and prosecutions,” issued two separate subpoenas for recordings held in the Belfast Project collection. The subpoenas were a response to a Northern Irish police request for American assistance in its investigation into the McConville abduction and death. The first subpoena did not specifically name McConville, demanding “recordings, written documents, written notes, and computer records of interviews” made with Hughes and former Provisional IRA member Dolours Price, who is still living. The second subpoena demanded “recordings of ‘any and all interviews containing information about the abduction and death of Mrs. Jean McConville,’ along with related transcripts, records, and other materials.”

Boston College complied with the request for the Hughes documents because it no longer considered them confidential after his death, but filed a motion asking the U.S. District Court for the District of Massachusetts to quash the subpoenas for the other materials or, in the alternative, allow for a review of the materials in order to limit the amount of information released. After an in camera review of the materials on Dec. 27, 2011, the district court ordered the remaining materials subject to the May subpoena released, and on Jan. 20, 2012, ordered the release of some of the materials subject to the August subpoena. Order, In re: Request from the U.K., No. 11-91078 (D. Mass. Dec. 27, 2011) and Findings and Order, In re: Request from the U.K., No. 11-91078 (D. Mass. Jan. 20, 2012)

Boston College did not appeal the district court’s order on the subpoena for the Price interview materials, but on Feb. 2, 2012, appealed the ruling on the August 2011 subpoena. The 1st Circuit held a hearing April 4, 2012 on that appeal but has not yet released its decision.

The subpoenas have drawn criticism from both sides of the Atlantic. According to The Associated Press (AP) on July 9, Sens. John Kerry (D-Mass.) and Charles Schumer (D-N.Y.), among other American politicians, have urged Secretary of State Hillary Clinton and U.S. Attorney General Eric Holder to withdraw the requests, citing concerns about the tenuousness of the peace agreement struck in 1998 known as the “Good Friday Agreement.” The AP also reported that Moloney and McIntyre have expressed concerns that they and other Belfast Project researchers could be branded as informants and face “the real risk of physical harm” if the interviews are turned over to police. On July 4, 2011, The Guardian of London reported that an independent Northern Irish commission investigating the cases of other “disappeared” alleged collaborators expressed concerns that the subpoenas could stall their efforts by making other former IRA members reluctant to speak out.

The subject of the July 6, 2012 ruling by the 1st Circuit was Moloney and McIntyre’s attempt to intervene on the subpoenas against Boston College. In initially denying Boston College’s motion to quash the subpoenas on Dec. 16, 2011, the U.S. District Court for the District of Massachusetts also denied the two researchers’ request to intervene in the case. Moloney and McIntyre appealed the district court ruling to the 1st Circuit and also filed a separate civil suit against Attorney General Holder, claiming that Holder violated the Mutual Legal Assistance Treaty because he did not consider the public policy ramifications of assisting with a British investigation that could undermine the peace agreement or he improperly discounted those ramifications. Further, the suit alleged that the subpoenas “violated the Plaintiffs’ constitutional right to freedom of speech, and in particular their freedom to impart historically important information for the benefit of the American public, without the threat of adverse government reaction.” The district court granted the government’s motion to dismiss the civil suit on Jan. 24, 2012.

The 1st Circuit’s July 6 ruling affirmed both the district court’s denial of the researchers’ request to intervene on the subpoena to Boston College as well as its dismissal of their civil suit. The court ruled that Moloney and McIntyre could not intervene in the university’s attempt to quash the subpoenas or bring a civil suit against Holder for two central reasons. First, Lynch wrote that the mutual legal assistance agreement between the United States and Britain forecloses the researchers’ claims because it states that its “provisions … shall not give rise to a right on the part of any private person to obtain, suppress, or exclude any evidence, or to impede the execution of a request.” The court also observed that a report by the Senate Committee on Foreign Relations accompanying the treaty “confirms” the court’s interpretation: “a person from whom records are sought may not oppose the execution of the request by claiming that it does not comply with the Treaty’s formal requirements.” Moreover, the court ruled that, under the terms of the treaty, federal courts do not have jurisdiction to review the decisions of the attorney general in complying with requests for legal assistance.

The court also ruled that Moloney and McIntyre had no right under the First Amendment to keep the interview materials confidential. “We affirm the dismissal, as we are required to do by Branzburg v. Hayes, 408 U.S. 665 (1972),” Lynch wrote. In Branzburg, a divided U.S. Supreme Court ruled that requiring “newsmen” to appear and testify before grand juries about confidential sources or information did not violate the First Amendment’s guarantees of freedoms of speech and press. In the decades since, federal appeals courts have varied in their applications of the Branzburg decision. Lynch wrote that the 1st Circuit recognized the “possibility” that “a reporter’s privilege of constitutional or common law dimensions” could exist in United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988) and ruled in Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998) that “academicians engaged in pre-publication research should be accorded protection commensurate to that which the law provides for journalists.” However, the 1st Circuit has not recognized a privilege in the context of a criminal case; the Cusumano case “dealt with claims of a nondisclosure privilege in civil cases, in which private parties both sought and opposed disclosure; as a result, the government and public’s strong interest in investigation of crime was not an issue.” Lynch wrote that Branzburg was “closer … than any of our circuit precedent,” in which the Supreme Court “held that the fact that disclosure of the materials sought by a subpoena in criminal proceedings would result in the breaking of a promise of confidentiality by reporters is not by itself a legally cognizable First Amendment or common law injury.”

Lynch wrote that the fact that the Belfast Project case did not involve a grand jury request like Branzburg made no difference in the analysis. “The law enforcement interest here —a criminal investigation by a foreign sovereign advanced through treaty obligations — is arguably even stronger than the government’s interest in Branzburg.” Lynch quoted Justice Byron White’s majority opinion in Branzburg that “the preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection.” White added, “it is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy.”

Lynch also dismissed the plaintiffs’ concerns about their personal safety, the safety of the interviewees, the political ramifications of the premature release of the interview materials, and the risk of a harmful chilling effect on future Belfast Project interviewees or similar research projects, writing that Branzburg also addressed each of those problems. In that case, “the interests in confidentiality of … informants did not give rise to a First Amendment interest in the reporters to whom they had given the information under a promise of confidentiality. These insufficient interests included the fear, as here, that disclosure might ‘threaten their job security or personal safety or that it will simply result in dishonor or embarrassment,’” Lynch wrote. “If the reporters’ interests were insufficient in Branzburg, the academic researchers’ interests necessarily are insufficient here.” Lynch wrote that the researchers’ “chilling effect” concerns “amount to an argument that unless confidentiality could be promised and that promise upheld by the courts in defense to criminal subpoenas, the research project will be less effective,” a risk that Branzburg took into account and also dismissed.

Lynch wrote that “this situation was clearly avoidable” because the researchers wrongly gave the interviewees the impression that their interviews could not be subject to a subpoena or other court order. “Even if participants had been made aware of the limits of any representation about non-disclosure, Moloney and McIntyre had no First Amendment basis to challenge the subpoenas,” Lynch wrote, because, as White wrote in Branzburg, “the mere fact that a communication was made in express confidence … does not create a privilege. … No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.”

In a concurrence, Judge Juan Torruella wrote that the 1st Circuit’s decision should be viewed narrowly. “While the effect of Branzburg and its progeny is to forestall the result that the Appellants wish to see occur, none of those cases supports the very different proposition, apparently espoused by the majority, that the First Amendment does not provide some degree of protection to the fruits of the Appellants’ investigative labors,” Torruella wrote, citing an oft-repeated qualifying statement in White’s Branzburg opinion: “We do not question the significance of free speech, press, or assembly to the country’s welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.”

Torruella wrote, “it is one thing to say that the high court has considered competing interests and determined that information gatherers (here, academic researchers) may not refuse to turn over material they acquired upon a premise of confidentiality when these are requested via government subpoena in criminal proceedings. It is entirely another to eagerly fail to recognize that the First Amendment affords the Appellants a measure of protection … in order not to undermine their ability to gather and disseminate information.”

According to the BBC on July 9, the McConville family “welcome[d]” the court’s ruling. In a television interview, Jean McConville’s son Michael said the people involved in the murder of his mother should be “named and shamed,” adding, “if something happens to them that will be good enough for our family.”

In a July 10 commentary in The Guardian, McIntyre called the subpoenas part of “a fishing expedition through the US justice department that aimed at plundering the fruits of that research stored in the Boston College archive” and questioned why British authorities had not been equally zealous in allowing private investigations into unsolved murders of alleged IRA members. “Ultimately, law enforcement agencies, which cannot escape culpability for Northern Ireland’s ‘dirty war,’ are now trying to shape society’s knowledge of that war by seeking to monopolize control over what unfolds from the past while simultaneously relegating the role of academic and journalistic researchers,” McIntyre wrote.

Minnesota District Court Recognizes Constitutional Reporter’s Privilege

On May 25, 2012, the U.S. District Court for the District of Minnesota quashed a subpoena demanding the testimony of a Minneapolis Star Tribune reporter as part of a civil lawsuit, citing a qualified privilege rooted in the U.S. Supreme Court’s ruling in Branzburg v. Hayes.

The subpoena arose in the context of a dispute between Minneapolis police officer Michael Patrick Keefe and the city of Minneapolis. Keefe sued the city and its police chief, Timothy Dolan, claiming he was the victim of “a tacit agreement and conspiracy resulting in adverse employment actions and harassment in violation of his statutory, civil, and constitutional rights” when he was suspended, demoted, and removed from a joint police department/FBI task force. Keefe’s claims in the federal lawsuit included common law and statutory whistleblower claims, reprisal, invasion of privacy, and intentional infliction of emotional distress.

As part of the discovery process for his lawsuit, Keefe subpoenaed Star Tribune reporter David Chanen, demanding that Chanen reveal sources for two articles about him: one published in January 2008 citing a letter from the city attorney’s office “recently made public” which accused Keefe of professional misconduct, and one published in May 2009 that referenced an internal investigation resulting in Keefe’s suspension and relying on unnamed “sources.” In his complaint, Keefe alleged that Dolan and other members of the police force, worried about his testimony at an upcoming trial and seeking to discredit him, “leaked” information to Chanen for the articles. In his May 25 order, Federal Magistrate Judge Steven Rau quashed the subpoena, finding that “Chanen’s qualified reporter’s privilege under the First Amendment outweighs Keefe’s curiosity.”

In stark contrast to the rulings in the Belfast Project cases, which considered Branzburg to be a broad rejection of a reporter’s privilege, Rau stated that Branzburg “confronted the narrow issue of whether reporters may be subpoenaed to testify in criminal grand jury proceedings.” Moreover, although the U.S. Supreme Court found that the First Amendment was not the source of such a privilege, Rau wrote, the concurrence of Justice Lewis Powell in that case “recognized that a qualified reporter’s privilege may be proper in some circumstances” and “advocated balancing the freedom of the press against the obligation of citizens to provide testimony.” Relying on that concurrence, Rau wrote, “most federal courts grant a qualified privilege for journalists against compelled disclosure of information gathered in the news-making process.” Keefe v. City of Minneapolis v. Star Tribune, 0:09-cv-02941-DSD/SER (D. Minn. May 25, 2012)

Although “the existence of a qualified reporter’s privilege is an open question” in the 8th Circuit, Rau wrote, the District of Minnesota recognized a privilege in J.J.C. v. Fridell, 165 F.R.D. 513 (D. Minn. 1995), establishing a “a three-pronged test” for determining whether a reporter’s testimony must be compelled. According to the test, “a requesting party may overcome the privilege if he or she can demonstrate that the information sought is: (1) ‘critical to the maintenance or the heart of the claim,’ (2) ‘highly material and relevant,’ and (3) ‘unobtainable from other sources.’”

Rau ruled that Keefe failed to meet any of the three prongs. The sources of Chanen’s two articles were not “critical” to the claims, Rau wrote, because “by Keefe’s own admission, these ‘leaks’ were ‘part of a wider pattern of retaliation and reprisal.’” Therefore the lack of information about them “will not critically harm” his case. Secondly, Rau found that Keefe’s demand for the information was based on “conjecture” and “speculation” and therefore could not be considered “highly material and relevant.” Rau wrote that Keefe assumed that Chanen’s source was “at least one of the five officers he suspects” and had already deposed. Further, Keefe presupposed that Chanen would remember which officers told him specific pieces of information. Keefe also argued that he would use the information provided by Chanen to “verify” information contained in the depositions, but Rau countered that claim: “it is plain that [Keefe] seeks this information to obtain potential impeachment evidence” that could undermine the credibility of the officers’ depositions. Rau cited several federal district court decisions for the proposition that “the mere possibility of impeachment evidence is an insufficient reason to vitiate the qualified privilege.”

Lastly, Rau wrote that the information Keefe subpoenaed may be available from other sources. “In his efforts to uncover Chanen’s sources, Keefe deposed only the five MPD officers he alleges ‘leaked’ information,” Rau wrote. “The officers either denied involvement or could not recall whether they discussed Keefe with Chanen. Simply because Keefe is dissatisfied with those answers does not demonstrate an exhaustion of all reasonable alternative means for establishing the identity of Chanen’s sources.”

Georgia Court Quashes Subpoena for Anonymous Commenters’ Identities

State courts in Georgia and Idaho considered whether newspapers could refuse to disclose the identities of commenters on their websites when government officials demanded they do so as part of libel suits. In Newton County, Ga., a Superior Court judge ruled on June 28, 2012 that the state’s “shield law” protected a newspaper from a libel plaintiff’s subpoena for the identities of eight commenters on the newspaper’s website. In April 2012, Alcovy High School Principal LaQuanda Carpenter demanded that the Rockdale Citizen newspaper turn over the identifying information as part of a libel suit she was preparing against the commenters, who had posted disparaging remarks about her job performance on the newspaper website in January 2011. Carpenter demanded that the newspaper surrender the names, addresses, and telephone numbers associated with the pseudonymous commenters; documents reproducing all of the comments they had posted since Jan. 1, 2011; and all server logs, IP address logs, account information, account access records and application or registration forms related to those eight commenters.

Judge Eugene Benton quashed the subpoena in a June 28, 2012 order, relying on the Georgia journalists’ shield law as well as a common law test for deciding when anonymous online speakers should be unmasked. Georgia’s shield law, O.C.G.A. § 24-9-30, extends a qualified privilege to “any person, company, or other entity engaged in the gathering or dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast,” allowing that person to refuse to disclose “any information, document, or item obtained or prepared in the gathering or dissemination of news.” In order to overcome the privilege, the party demanding the information must show that it “(1) is material and relevant; (2) cannot be reasonably obtained by alternative means; and (3) is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.”

Carpenter argued that the state shield law did not apply because the information she sought was not the identities of confidential sources, but Benton disagreed, ruling that Georgia case law supports a broad interpretation of the phrase “information … obtained or prepared in the gathering or dissemination of news,” including the identities of anonymous commenters on the Rockdale Citizen site. Benton ruled that the subpoena must be quashed because Carpenter had failed to prove that the identities “cannot be reasonably obtained by alternative means” under the second qualifying element of the shield law. Carpenter v. Does, CV-2012-895-5 (Super. Ct. Ga. June 28, 2012)

Benton also addressed the newspaper’s argument that even if the shield law did not apply, standards developed in recent case law around the country on anonymous online speech would require Carpenter to notify the anonymous speakers that their identities were sought and give them reasonable time to respond to the subpoena. Benton ruled that a standard devised by the Arizona Court of Appeals in Mobilisa, Inc. v. John Doe 1 and The Suggestion Box, Inc. 170 P.3d 712 (Ct. App. Ariz. 2007) was most suited to the Rockdale Citizen case. Under the Mobilisa standard, “In order to compel discovery of an anonymous internet speaker’s identity, the requesting party must show (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request; (2) the requesting party’s cause of action could survive a motion for summary judgment on elements not dependent on the speaker’s identity; and (3) a balance of the parties’ competing interests favors disclosure.” (For more on the developing judicial standards for revealing anonymous online speakers, see “Online Anonymity Continues to Challenge Courts, Plaintiffs” in the Summer 2010 issue of the Silha Bulletin, and “Subpoenas to Unmask Anonymous Internet Users Continue to Challenge News Media and Courts” in the 2009 issue.)

Benton ruled that Carpenter had not met the first prong of the test requiring that she give the commenters adequate notice and an opportunity to respond to the subpoena. However, he left the possibility open that the identities could be disclosed: “Assuming that Plaintiff is unable to obtain the identity of the anonymous speakers by reasonable methods as required by the Georgia Shield Law, and assuming that Plaintiff gives proper notice as required by Mobilisa, the Court will then move to the second step of Mobilisa to determine whether Plaintiff’s cause of action could survive a motion for summary judgment.” Benton quashed the subpoena “without prejudice to Plaintiff’s right to reissue a subpoena.”

Idaho Court: No Privilege for Anonymous Commenters

On July 10, Idaho First Judicial District Judge John Luster ruled that the Spokane, Wash. Spokesman-Review must hand over information identifying one website commenter, but quashed the subpoena for information about two others. In “a matter of first impression for Idaho state courts,” Luster ruled that Kootenai County Republican Chairwoman Tina Jacobson’s demand for the identity of commenter “almostinnocentbystander” met the three requirements of a test for deciding whether such subpoenas should be upheld that was similar to the Mobilisa standard applied in the Rockdale Citizen case. Jacobson v. Doe, CV-2012-0003098 (1st Jud. Dist. Idaho July 10)

Jacobson sought the identities of the three commenters in order to sue them for defamation for comments posted Feb. 14, 2012, which speculated about whether she had stolen money from the Kootenai County Republican Central Committee.

The Spokesman-Review argued that the commenters’ identities were subject to a privilege under the First Amendment as well as Article 1, Section 9 of the Idaho Constitution. Although Idaho has no shield law, the state supreme court recognized a qualified privilege in In Re Contempt of Wright, 700 P.2d 40 (Idaho 1985) for “the identities of confidential sources that provide the reporters with information and assist in the task of gathering and reporting news.”

Luster ruled that “while there is some discussion amongst federal appellate courts that the Branzburg decision was limited only to that case … the Ninth Circuit has recognized that Branzburg limits the ability of federal circuit courts to recognize even a qualified reporter’s privilege. … Thus, the First Amendment does not provide for a reporter’s privilege.” Luster cited In Re Grand Jury Proceedings, 5 F.3d 397 (9th Cir. 1993), a case in which the 9th Circuit rejected a Ph.D. student’s claim of a “scholar’s privilege” coextensive with a reporter’s privilege, and McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), a case in which the 7th Circuit ruled that a proper interpretation of the Branzburg decision finds no reporter’s privilege under the First Amendment and that courts had “rather surprisingly” relied on the Powell concurrence for recognizing a qualified privilege. (See “Reporters’ Privilege Update” in the Fall 2003 issue of the Silha Bulletin for more on McKevitt v. Pallasch.)

Luster further ruled that the state level privilege did not apply in the Spokesman-Review case because Dave Oliveria, the reporter and columnist who wrote the blog post where the comments were posted, “was not acting as a reporter when the statements were made, but instead was acting as a facilitator of commentary and administrator of the Blog.”

The Spokesman Review argued that, failing the recognition of a reporter’s privilege, the subpoena should be quashed because Jacobson failed to meet the test for forcing the disclosure of the identity of anonymous online speakers that was outlined in the cases Dendrite International, Inc. v. Doe Number 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) and Doe v. Cahill, 884 A.2d 451 (Del. 2005). Instead, Luster applied a test devised by the Federal District Court for the District of Idaho, which he wrote “accounts for all the elements of the Cahill or Dendrite tests.” In SI03 v. Bodybuilding.com, CV-07-6311 (D. Idaho 2008) the court ruled that “a court may order the disclosure of an anonymous poster’s identity if a plaintiff: (1) makes reasonable efforts to notify the defendant of a subpoenas or application for an order of disclosure; … (2) demonstrates that it would survive a summary judgment motion … and (3) the court must balance the anonymous poster’s First Amendment right of anonymous free speech against the strength of the plaintiff’s case and the necessity of the disclosure to allow plaintiff to proceed.” In his analysis, Luster found that because the Spokesman Review had written about Jacobson’s subpoena and the newspaper’s motion to quash and because Jacobson had posted a notice on the Spokesman Review website about the lawsuit, she had satisfied the first part of the test.

As to the summary judgment part of the test, Luster ruled that Jacobson had shown that she was likely to succeed on a claim of libel per se against the commenter “almostinnocentbystander,” who “specifically used the word ‘embezzlement’ and specifically noted the Plaintiff’s profession as a ‘bookkeeper,’ thereby subjecting the Plaintiff to professional disgrace and negatively affecting her reputation in her personal business.”

Moreover, because Jacobson would qualify as a public figure because of her role with “a large political organization,” Luster wrote that she would need to show that “almostinnocentbystander” defamed her with “actual malice,” a standard established in the landmark U.S. Supreme Court case New York Times v. Sullivan 376 U.S. 254 (1964), which requires a “clear and convincing” showing that the commenter knew the statement was false or recklessly disregarded whether it was true or false. Luster ruled that Jacobson had met the “actual malice standard” because an independent investigation of the Kootenai County Republican Central Committee’s finances had shown that it was missing no money, thus showing that the statement was false, and because the commenter recanted the accusation in a later comment on the same blog, supporting the claim that the commenter acted recklessly, “engag[ing] in a purposeful avoidance of the truth.”

On the other hand, Luster ruled that because Jacobson sought the two other commenters’ identities in order to call them as witnesses rather than to make them defendants in her libel suit, summary judgment analysis could not apply, and therefore the subpoena for their identities must be quashed.

In balancing the commenters’ First Amendment rights of anonymous free speech against Jacobson’s case, the last prong of the test, Luster observed that the libel case could not proceed without the identity of the plaintiff. Moreover, although the right of anonymous speech is “a sacred and inviolate right enjoyed by all three individuals … this Court notes that the United States Supreme Court, since 1942 [in Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942)], has stated that the First Amendment does not protect defamatory speech.” The Idaho State Constitution also states that “persons who write, publish, and speak are ‘responsible for the abuse of that privilege,’” Luster wrote. “Thus while the individuals are entitled to the right of anonymous free speech, this right is clearly limited when abused.”

On July 24, the AP reported that the Spokesman-Review decided to comply with the subpoena on July 23. That same day, former Republican campaign worker Linda Cook of Rathdrum, Idaho told the Coeur d’Alene Press that she was the commenter “almostinnocentbystander.” According to the AP, Spokesman-Review editor Gary Graham said the decision to comply was not a result of Cook’s revelation. “The decision not to appeal didn’t really have anything to do with whether the commenter planned to go public,” Graham said. “Our attorneys advised us that we were extremely unlikely to succeed with an appeal.”

Online Publisher Cannot Claim Texas Shield

On May 15, 2012, a District Court Judge in Weatherford, Texas ruled that the publisher of an environmental website could not claim the protection of the state’s shield law because she “failed to prove that she is a journalist or that her employer … is a news medium.”

Sharon Wilson publishes a blog called “TXSharon Blue Daze Drilling Reform” on which she posts information and links related to oil and gas drilling that is generally critical of the corporate interests of the oil and gas industry. As part of a discovery request in a civil lawsuit between Range Resources Corporation and Steven Lipsky, a homeowner Range had accused of attempting to harm its reputation, Range subpoenaed Wilson demanding information that included her correspondence with Lipsky as well as with government agencies including the Environmental Protection Agency (EPA), Department of Justice, and Government Accountability Office (GAO).

In January 2011, Lipsky sent Wilson a video clip via a submission form on her website. The video purported to show flames pouring out of a garden hose attached to a well on Lipsky’s property, which he claimed was the result of Range’s 2009 hydraulic fracturing operations there. Wilson posted the video to her YouTube channel “TXSharon” with the title “Hydraulic Fracturing turns gardenhose to flamethrower.”

Lipsky also sued Range, alleging the company had introduced methane into his water supply, and Range in turn sued Lipsky, accusing him and environmental consultant Alisa Rich of defamation. According to Judge Trey Loftin of Texas’ 43 Judicial District, “Wilson is a central character in the Lipskys’ and Rich’s conspiracy to defame and disparage Range.” Range’s subpoena demanded that Wilson turn over copies of emails between her, Lipsky, Rich, and government officials. Wilson requested that the subpoena be quashed under the Texas journalist’s shield law, codified at Texas Civil Practices & Remedies Code §22.021-22.027.

Loftin denied Wilson’s request, finding that Wilson could not claim the qualified privilege because she did meet the definition of “journalist” under the shield law. Moreover, even if she could be considered a journalist, Loftin ruled, Range had satisfied the standard set out by the law to make a “clear and specific showing” that the subpoena was not unreasonable and that the information could not be obtained from other sources. Lipsky v. Range, CV11-0798 (Tex. Dist. Ct. Parker Co. May 15, 2012)

The Texas shield law defines “journalist” as “a person … who for a substantial portion of the person’s livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider.” According to Loftin’s order, Wilson does not make a substantial livelihood from her blog; she “did not create [it] for the purpose of making money,” and although she works part time as an organizer and advocate for an environmental accountability group called Earthworks, “there is no evidence that a substantial portion of Wilson’s salary is attributable to her activity regarding her blog.” Moreover, Loftin wrote, “Wilson has no background as a journalist,” she “does not have any education or training in the field of journalism. … Instead, Wilson claims that she is an activist.” Loftin added that “Wilson displays none of the characteristics of the journalism profession” as defined by the Society of Professional Journalists and the Project for Excellence in Journalism. Earthworks, Wilson’s part time employer, “is not engaged in journalism [and] is not a news media organization” and therefore “is not a ‘news medium’ as defined by Section 22.021(3).”

Loftin further ruled that, even if Wilson did qualify as a journalist under the shield law, Range had satisfied the law’s requirement that it “make[] a clear and convincing showing” that it has exhausted “reasonable efforts … to obtain the information” elsewhere; that “the subpoena is not overbroad, unreasonable, or oppressive;” that “reasonable and timely notice” was provided to Wilson; that Range’s interest “outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;” that the subpoena was not aimed at “peripheral, nonessential, or speculative information;” and that the information is “relevant,” “material,” and “essential” to the maintenance of Range’s claim against Lipsky and Rich.

Loftin concluded that because the EPA had stated that it would treat Range’s information requests as Freedom of Information Act (FOIA) requests, “it will probably take an excessive amount of time for Range to obtain the requested documents and communications between EPA and Wilson” that way, making “Wilson … the only reasonably available source of recovery.” Loftin ruled that the same standard applied for requested communications between Wilson and the U.S. Department of Justice and the GAO. As for communications Range requested between Wilson and other individuals, Loftin ruled that the subpoena was reasonable because “it is not reasonable to require Range to incur the time and expense of pursuing the discovery of requested documents and communications with Wilson from persons residing or having their principal place of business outside the 150-mile subpoena range of this court.” Loftin also concluded that the subpoena was “reasonably tailored” to the relevant facts, parties, and claims in the case.

As to balancing between the “fair administration of justice” and “the free flow of information [and] a free and active press,” Loftin ruled that Wilson “does not observe rules of ethics applicable to those who engage in journalism as a profession … does not claim to be objective in her blogging … and considers herself to be in a kind of war against the oil and gas industry,” adding “given Wilson’s lack of independence, Wilson is not a member of a ‘free’ press.” The judge concluded that “even if it were assumed that Wilson disseminated ‘news,’ Range’s, and the public’s, interests in discovering the truth in the fair administration of justice are substantial and outweigh any interest in the gathering and dissemination of news.”

Wilson’s attorney J. Scott McLain told the Bulletin July 18 that she later complied with a narrowed discovery request, which asked for “any communications between Sharon and a list of specific 3rd parties pertaining to the claims in the litigation and the litigants,” as opposed to the original subpoena, which “also included communications between Sharon and anyone else in the world pertaining to those same issues,” McLain said. Wilson also will be deposed on August 6, McLain said; “the deposition, in theory, will be limited to what Sharon knows about the lawsuit which, ironically, is precious little.”

In late May 2012, Loftin was criticized for campaign mailers he released suggesting that his rulings in landowners’ suits against Range had caused “Obama’s EPA” to “back down” against the corporation. According to May 25 Bloomberg News story, the fliers could violate Texas’ campaign rules for judicial races by commenting on a pending case. On June 8, Bloomberg reported that Loftin recused himself from the civil case. Loftin wrote to an administrative judge, “while I know that I have been a fair and impartial jurist, I am concerned that appearances in this case have become its own story [sic].”

– Patrick File
Silha Bulletin Editor