NH Supreme Court Hears Case On Protections For Anonymous Sources Online

fulldecent writes "The New Hampshire Supreme Court heard oral arguments Wednesday in a lawsuit that calls into question the legal protections available to independent Web sites that cover news. The case involves mortgage lender Implode-Explode, a Las Vegas-based site launched in 2007 that publishes stories about the meltdown of the mortgage industry. Associate Justice Carol Ann Conboy pressed the point with [defense lawyer Jeremy Eggleton], questioning, 'Can anyone who posts a blog be considered a reporter,' for the purposes of claiming protection of anonymous sources? Eggleton answered yes, within limits: 'The test is whether the person has an intention to gather, analyze and disseminate.'"

Comments

Begging the question

[BadAnalogyGuy]

You don't need to be a "reporter" to protect your sources. The attempt to pigeonhole a specific right to a specific type of profession is exactly the kind of intellectual manipulation that is going on in this country, and I'm sad to see it happening in the judiciary.

Take for example the idea that we need extra security for air travel. We argue about the limits of search and seizure, but we never argue whether such search and seizure is actually necessary.

Why should only reporters be allowed to conceal their sources? Why should only priests, lawyers, and doctors be able to keep client information secret? These assume that there is a special need for this kind of protection above and beyond what a normal citizen would need.

Well fuck that. I'd like to think we're all equal in the eyes of the law, no matter what our profession is.

Re:Begging the question

[KiahZero]

Under federal law, reporters aren't given special rights to protect their sources. Reporters (somewhat infrequently) have to go to jail to protect their sources, as Judith Miller did during the Plame-leak investigation. New Hampshire's Supreme Court appears to have previously ruled that the state constitution provides some level of privilege, arguing that "[o]ur constitution quite consciously ties a free press to a free state, for effective self-government cannot succeed unless the people have access to an unimpeded and uncensored flow of reporting. News gathering is an integral part of the process."

As for your second question, the reason priests, lawyers, and doctors are permitted under the Federal Rules of Evidence (and, as far as I'm aware, state evidence law), is because of the special relationships these professions have with their clients. Independent judgments have been made, over the years, that forcing these specific categories of people to reveal their confidences learned in the course of their job would be harmful to society. A similar rationale is used for the other type of privilege you left off the list - spousal.

Of course, as I write this, I see your name is "BadAnalogyGuy," so perhaps you were simply being true to your name rather than making a sincere argument.

Re:Begging the question

[sys.stdout.write]

You have lived up to your username! Air travel is a bad analogy! Everyone has the right to conceal private information. It's a question of whether they can do it if the information is necessary to resolve a lawsuit. People won't tell their doctors confidential things needed to diagnose if they have to worry about potential disclosure. The same argument works with journalists. The Pentagon Papers, for instance, would never have been released if New York Times reports didn't guard their sources' anonymity. The law recognizes that these special cases because of their critical importance to society. You will have a tougher time arguing that Disney should be able to protect the anonymity of their Hannah Montana customers upon subpoena.

Re:Begging the question

[Ihmhi]

What is the legal distinction between, say, "a priest and one of his congregation" and "a reporter and one of his sources"?

I would easily say that any laws or regulations that force (or attempt to force) anyone to disclose their sources when doing any sort of journalism is a bigger threat to a country over what you said to Father O'Brien or a chat you had with your doctor.

Re:Begging the question

[Smallpond]

Well fuck that. I'd like to think we're all equal in the eyes of the law, no matter what our profession is.

Next you'll try to claim that any citizen has equal rights to own guns instead of just sworn police officers. Although I don't understand what bad language has to do with it.

Re:Begging the question

[KiahZero]

The jurisprudence of the priest-penitent privilege is that, were the government to compel religious figures to testify regarding confidential conversations, that would effectively prevent people from exercising their religion by subjecting any confession of wrongdoing to the threat of being revealed to law enforcement.

The right to gather information from anonymous sources, on the other hand, is seen as less fundamental to the exercise of the free press. It is not, however, completely unprotected, because in order to prevent abridging the First Amendment, the government must demonstrate an overriding need for the information.

Re:Begging the question

[Anonymous Coward]

The fundamental difference between a priest and a reporter is the ultimate audience. A priest keeps a parishioner's confession to himself while the reporter's job is to turn a source's information into a story and then have the story published for mass consumption. The same difference applies to Doctors and Lawyers.

Re:Begging the question

[Planesdragon]

Why should only reporters be allowed to conceal their sources?

Why should society allow anyone legally protected anonymity if there is not someone else willing to stake their name and reputation on the anonymous source's alleged facts?

Why should only priests, lawyers, and doctors be able to keep client information secret?

1: Because to properly advise someone on morality, they need to be able to be able to tell you everything.
2: Because to properly advise someone on legality, they need to be able to be able to tell you everything.
3: Because to properly advise someone on medicine, they need to be able to be able to tell you everything.

The only reason priests don't have to go through the certification and study and governance that lawyers and doctors do is the separation of church and state. You did know that practice of law or practice of medicine without a license is a crime, right?

These assume that there is a special need for this kind of protection above and beyond what a normal citizen would need.

No. They assume that there is benefit to society to exempting these special cases from the general rule of discoverability.

Well fuck that. I'd like to think we're all equal in the eyes of the law, no matter what our profession is.

So you're saying that if *I* came into your house and slept with your wife while she was asleep, that shouldn't be rape, because you have implied consent?

Re:Begging the question

[dontmakemethink]

But if a court cannot compel a witness to come forward when even the probative value of the testimony outweighs the potential damages to the witness, there would be a LOT more criminals on the streets that are in fact guilty of serious crimes.

Journalists, doctors, lawyers, and priests are afforded special consideration due to the importance of their work as professions and how prohibitive it is for those professions to operate effectively without such consideration. Gardeners, for example, do not require such consideration to contribute to society. If a gardener refuses to reveal the name of a client when the information is required to prove a murder case, try telling the victim's family that the court should not have the authority to compel that gardener to reveal the name of the client, by indefinite incarceration if necessary. It's called contempt of court and/or obstruction of justice.

And journalists do not actually have the right to protect sources, they are only given some latitude. Even spouses are given more privilege.

IMO, Eggleten's argument, 'The test is whether the person has an intention to gather, analyze and disseminate' is a good one, with the flip-side that bloggers known to publish false, exaggerated, and/or misleading articles should receive no such consideration. They're either all-in or all-out. It can't be turned on and off like a light switch.

While sentiments may lead one to prioritize freedom over justice or vice versa, they are integrally linked and must always be given equal consideration.

Re:Begging the question

[jonaskoelker]

You will have a tougher time arguing that Disney should be able to protect the anonymity of their Hannah Montana customers upon subpoena.

Simple: it'll destroy their reputation...

Re:Begging the question

[Talisman]

Maybe change your name to BadClicheGuy.

"Begging the question" does NOT mean 'makes you wonder' or 'brings a particular inquiry to mind'.

It's a logical fallacy, a hallmark of circular arguments.

Me: That water is really warm.
You: What makes you say that?
Me: Because it's hot.

THAT is begging the question.

The term is so misused today, even by people on TV who as professional speakers should know better, that it is commonly used as you used it, but it's still wrong. And stupid.

Fuck man, think of the phrase in the context you're using it in. It makes no sense.

It 'begs the question'. What's it begging? Are you begging? You're begging to ask a question?

If the phrase made grammatical sense to imply a different meaning, I would understand the confusion, but the phrase itself makes no sense when taken in literal form.

It begs the question, what sort of education are our children getting?

See how fucking stupid that sounds?

Re:Begging the question

[Anonymous Coward]

Clearly you lack reading comprehension because "begging the question" was used correctly in the GP post. Additionally, your understanding of the term is so rudimentary that it calls into question what sort of authority you can actually speak with on this topic.

Begging the question means positing an argument which implicitly assumes a premise. The (bad) analogy of airport security is a great example of begging the question. The arguments surrounding airport security center around the extent to which security methods should intrude into personal privacy. However, it implicitly assumes that such security methods are necessary in the first place.

The same type of problem exists with this ruling. In deciding whether a blogger could have the same rights as a journalist/reporter, it found that the blogger must act in such a way as to qualify as a journalist/reporter. But such a decision assumes a priori that only reporters should have such rights.

There's no one here to censor your speech on Slashdot. However it might behoove you to censor yourself before you post and embarrass yourself, Talisman.

Re:Begging the question

[kmoser]

You did know that practice of law or practice of medicine without a license is a crime, right?

I am not a lawyer, yet I'm allowed to act act as my own defense attorney, thus practicing law without a license.

Madd Writing Skilz

[sribe]

So, is Implode-Explode a mortgage lender with a blog, or a blog about mortgage lenders???

Re:Madd Writing Skilz

[e9th]

Why not follow the link from the article and decide for yourself?

Re:Madd Writing Skilz

[Zontar The Mindless]

Why not have parseable summaries?

Re:Madd Writing Skilz

[hansraj]

Did you buy this account with such a low uid? You sound like you are new here.

Re:Madd Writing Skilz

[Zontar The Mindless]

Isn't it about time for you to pour some hot grits down your pants, youngster?

Re:Madd Writing Skilz

[astar]

More a blog about mortgage lenders, but somewhat more. Looking around a bit, they have a wealth of detail, and do a pretty reasonable job of deriving real numbers from the official numbers. They seem to be gold bugs, but their argument for gold at least hits some true points. Probably the best a monetarist could be expected to do.

Re:Madd Writing Skilz

[hansraj]

I will also get off of your lawn while doing so. Come to think of it, I would also get off on your lawn while doing so.

Dangerous precedent

[RogueWarrior65]

IMHO, this is dangerous. These days, if people see it on the internet, it's true until proven false. Of course in many newspapers that's also the case but it's much easier to come down on them like a ton of bricks and get people fired for spreading lies. Not so with a blogger. They aren't employed by a company generally who can reprimand them for not fact-checking and even if you get a court order to shut them down they'll just move the content to a different place.

Re:Dangerous precedent

[bsane]

Newspapers and other media have an agenda too, whether it be political bias, or the desire to make more money. Most (all?) have comprised their reporting, and continue to do so on a regular basis. Traditional press isn't some holy box of pure information- its in the same ballpark as the bloggers, except with a lot of money behind them.

I agree that it would seem to be more difficult to determine truth when there are 1000 random voices vs 5 established ones telling you 'the way it is'. Its always been up to you to figure out the real story from all the slanted reports, now there are just a lot more of them.

Re:Dangerous precedent

[crazyjimmy]

IMHO, this is dangerous. These days, if people see it on the internet, it's true until proven false. Of course in many newspapers that's also the case but it's much easier to come down on them like a ton of bricks and get people fired for spreading lies. Not so with a blogger. They aren't employed by a company generally who can reprimand them for not fact-checking and even if you get a court order to shut them down they'll just move the content to a different place.

You know, back when the Bill of Rights was written, ANY idiot with a printing press could declare themselves to be a reporter, and post news. The truthiness of the news was not the issue, nor was the individual reporter's goals and motivations. The issue was the government shutting down people who said things they didn't like.

I don't see how bloggers are all that different.

--Jimmy

Re:Dangerous precedent

[RogueWarrior65]

I don't disagree with you but a blogger can't be fired or reprimanded especially with the 1st Amendment on their side. However, there have been several high-profile incidents of mainstream media personnel getting appropriately reprimanded. Dan Rather is a recent example.

Re:Dangerous precedent

[RogueWarrior65]

It's different when you can't go after them for liable and viral falsehoods become fact. Case in point: Rush Limbaugh says that the media wants McNabe to do well because he's African American. That statement of opinion then gets distorted by false and unsubstantiated statements on his wikipedia entry. Now, too many people these are all facts and plaster a racist label on him.

Re:Dangerous precedent

[WCguru42]

One still has recourse for libel and slander if they can find out who the person is. It's no different than if someone anonymously sent a letter to a paper asserting that Rush Limbaugh was a racist. If the person cannot discern who that anonymous person is then they cannot file for recourse. It really shouldn't be that difficult to convince people that an anonymous statement shouldn't be taken as fact without some support of evidence, whether that be previous bone headed statements made by the accused or whatever other evidence there might be.

Re:Dangerous precedent

[Anonymous Coward]

How about MSI PROVES that the statement is false first, maybe THEN they can get a court order to reveal identities. These guys have a track record of fraud. They were even convicted of it. They have given up any expectation to benefit of the doubt. The fact that they are still in business is testament to the acceptance of corruption in America today.

Re:Dangerous precedent

[gd2shoe]

Newspapers and other media have an agenda too, whether it be political bias, or the desire to make more money. Most (all?) have comprised their reporting, and continue to do so on a regular basis.

I think you mean "compromised". If you really did mean "comprised", then you need to reword your sentence. (What's doing the comprising? It's a little vague.)

I agree that more voices publishing their views is generally a good thing. The best of the bloggers are substantially better than the worst of the traditional reporters. Still, due to resources, training, and experience, the rare few (and I mean rare) traditional reporters with scruples can deliver news services that bloggers can only dream of. They certainly have their place. There simply isn't the huge categorical divide that they want to believe there is.

In general, low end reporters are better than low end bloggers. High end reporters are better than high end bloggers. Same for average reporters and bloggers. Not at all the same for any arbitrary pairing of reporters and bloggers.

My 3 cents.

Re:Dangerous precedent

[gd2shoe]

Wikipedia is not a blog. This isn't about the anonymity of the author, but about his sources. Difficulty in executing libel cases against non-blogs is a slightly different topic.

Re:Dangerous precedent

[gd2shoe]

I don't see how bloggers are all that different.

Let's see... a computer today costs less than a printing press then did (adjusting for inflation). Some bloggers attempt anonymity, which is easier to pull off online.

Granted, those are superficial to the excellent point you were making.

Re:Dangerous precedent

[RogueWarrior65]

True but if a blogger can say "Eff you, my source is confidential." even if they made the whole thing up, how can anyone ever sue for libel and slander? Wouldn't it make more sense for a judge or grand jury to ascertain the existence of the source?

How about a hypothetical case: Take Angie's List or any review site. What if you had a business and some competitor made completely false statements about your business? What means do you have to go to that site and demand that false information be pulled? After all, that's hurting your business.

Re:Dangerous precedent

[RogueWarrior65]

IMHO, wikipedia isn't supposed to be a blog yet unsubstantiated statements can and do appear and even though they are tagged as needing a source it may not matter. An unsubstantiated statement can be copy&pasted instantly by some entity that has a following e.g. a newspaper. Most people wouldn't bother to fact-check it themselves especially if their own belief coincides with the author's. Eventually a dubious statement becomes fact and it's next to impossible to reverse it. IMHO, the difference is the speed at which internet-based statements spread and there's never a fact-check before it's posted.

Re:Dangerous precedent

[Planesdragon]

True but if a blogger can say "Eff you, my source is confidential." even if they made the whole thing up, how can anyone ever sue for libel and slander?

Sue the blogger.

Sheesh. Reporters don't have any greater freedom of the press than you or I. They just have, in some intra-state matters, an ability to not identify sources. You can still sue them for slander or libel, as they have the same duty to not-slander and not-libel as anyone else. (Which is why a smart reporter always asks for the other side -- so they can stand before a jury and say they asked for the other side,)

Re:Dangerous precedent

[gd2shoe]

IMHO, wikipedia isn't supposed to be a blog yet unsubstantiated statements can and do appear and even though they are tagged as needing a source it may not matter.

"unsubstantiated statement" is not synonymous with blog. Keep trying.

An unsubstantiated statement can be copy&pasted instantly by some entity that has a following e.g. a newspaper.

That's just bad journalism. I don't care if it's a newspaper, tv reporter, or a blogger. It's inexcusable, but admittedly commonplace. It still does not make Wikipedia a blog, and still does not differentiate bloggers from reporters.

Most people wouldn't bother to fact-check it themselves especially if their own belief coincides with the author's. Eventually a dubious statement becomes fact and it's next to impossible to reverse it.

Yep.

IMHO, the difference is the speed at which internet-based statements spread...

This has more to do with mainstream news sites and news aggregators. Information gets parroted without fact checking. If media sources which are widely distributed and widely considered credible did not participate, this would stop. On the other hand, this would still be a major problem if every blogger stopped writing this instant.

... and there's never a fact-check before it's posted.

Not true. Irresponsible bloggers (like irresponsible mainstream journalists) don't fact check. Responsible bloggers and journalists do. The percentage of responsible journalists may be higher, but it's still an embarrassment to the profession. You can't lump all bloggers together in this manner just as you can't lump all mainstream journalists together.

Re:Dangerous precedent

[DaveV1.0]

Well, let us look at your contention:

• While in theory it was possible for any idiot to purchase a printing press, that "idiot" would have need a large some of money, training on using it, the time to operate the press, and the money to afford the printing materials. Operating a printing press from the 1700s is not like using a computer today and laser printer today. It is not even like using a printing press today. It was time intensive, laborious work. It could take hours to typeset a single page. Printing presses were very expensive as were the typefaces. Everything was hand-made back then, remember. in the 1700s, printing wasn't something one did in ones spare time.
• Today, one can declare oneself a reporter and post news. Back then, one had to earn one's living from the information one provided. If the information was wrong, one would soon find oneself with no readership. And, if one printed enough wrong information about enough people, one might find one's printing press and office destroyed by one's victims.
• Back then, one could be forced to disclose sources through the courts. One could be sued and lose everything one owns by one's victims.
• Back then, it was very hard to anonymously reach a large audience with false information.

BTW, "truthiness" is not a word. The word you were looking for was truthfulness.

Why fear terrorists...

[Anonymous Coward]

Why fear third-world terrorists, when some of the citizenry of the nation itself want to strip other citizens of their God-given rights?

With you!

[Lemming Mark]

I was actually coming here to maybe point out the same thing - that (particularly nowadays - blogs are already providing examples of this) the distinction between reporters and ordinary citizens in this regard - even as a concept, when not actually in law - looks pretty bogus. In serious criminal cases I'd say there should perhaps be an obligation to give up information that might help bring the criminal to justice. But for anything else, I just don't see why an individual should have to give up the details of their sources. Whilst it might give rise to some complications to be worked through, I'd expect that this would result in a freer society and eliminate the thorny question of "what is a journalist".

Ah

[delta98]

kill the messenger. Someone got caught and a contributor to a blog said some naughty things about them. This might get interesting.

Sexual subtext?

[Anonymous Coward]

Anyone else notice a possible subtext to this story?

fulldecent... oral... Implode-Explode... Las Vegas... Justice Conboy... pressed the point with... Eggleton... for the purposes of... protection... 'The test is whether the person has an intention to... disseminate.'

Re:Sexual subtext?

[delta98]

No, but I see a possible subtext to the constant A/C post's. Lame..unfunny..purposely disruptive..trash a thread since it might make the A/C some shill cash on the side..

Divine free speech?

[gd2shoe]

Whoa! Slow down there!

God gave us self governance to be used with wisdom and prudence (or he'd insist that we live in a theocracy). Freedom of the press was something that man decided was prudent for the type of society we want to live in. I'm unaware of any religion that teaches a divine right to a free press. (I can only name one that can make an indirect argument for this.)

Granted, I think we'll be held accountable to how we treat others, including which so-called rights we allow or deny them. I can imagine individual preachers touching upon the subject. Still,I doubt you can come up with specific passages from the sum canon belonging to major religions.

Re:anonymity

[Anonymous Coward]

Richard Saunders, aka Ben Franklin, would like to have a word with you....

gather, analyze and disseminate

[Hognoxious]

The test is whether the person has an intention to gather, analyze and disseminate.

Bloggers across the world breathe a collective sigh of relief that 'inform' was omitted.

Columnists, Editorialists, and Journalists

[DaveV1.0]

I am beginning to think that the profession of Journalist, and all it's attendant protections, needs to be regulated and licensed just like Doctor, Lawyer, or Engineer.

There should be a body, like the Bar, which sets out how one becomes a journalist, what rules a journalist must follow, journalistic standards, and the ethics that must be followed. The body would set the entry requirements, investigate claims of unethical behavior or rule breaking, and even decide if one's work is up to journalistic standards. It would have the power to remove one's Journalist designation. It would be made up of other, recognized journalists.

That would make it easier to distinguish the real journalists from the Limbaughs, O'Riellys, Stuarts, Huffingtons, and all the other columnists and editorialist who don't have to be objective and factual.

Re:Columnists, Editorialists, and Journalists

[meson2439]

But that would beat the whole purpose of press freedom. If they have a bar to regulate reporters, it would be easy for the business and government to influence it. Lawyers and doctors are not licensed to ascertain their qualifications but to avoid customers getting duped by fraudsters and quacks. The qualification stuff came afterward when they got all smug and everything.

Re:Columnists, Editorialists, and Journalists

[DaveV1.0]

No, it does not "beat" the purpose of freedom of the press. Freedom of the press does not give the press the right to lie. Journalists, who are supposed to be objective and factual need to be licensed "to avoid customers getting duped by fraudsters" who lie and report only those facts which support the columnists personal views, even if the columnist is wrong.

The biggest thing you miss is that one could still write and publish, but one would not be a Journalist with it's attendant protections.

If a group is going to be a protected group, that group needs to be well defined. By and large, bloggers are not journalists. Hell, a significant portion of reporters are journalists anymore, they are just columnists who don't deserve any respect or protection.