FYI,
Valerio
Sent: Thursday, May 06, 2010 8:58 PM
Subject: New Hampshire Supreme Court Upholds Free Speech Rights for
Online News Sites
NEW HAMPSHIRE SUPREME COURT UPHOLDS FREE SPEECH RIGHTS FOR
ONLINE NEWS SITES
Ruling Mirrors Arguments Made in Brief by the
Citizen Media Law Project, Harvard Cyberlaw Clinic, and Reporters Committee for
Freedom of the Press
May 6, 2010 – The New Hampshire
Supreme Court today issued an important decision upholding the First Amendment
rights of online publishers. Harvard Law School’s Cyberlaw Clinic submitted an
amicus curiae brief last June on behalf of the Citizen Media Law Project
and the Reporters Committee for Freedom of the Press in the case, The
Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. The
reasoning of today’s ruling mirrored arguments in the amicus brief, as
the Court concluded that a lower court’s injunction preventing a website from
posting a leaked document was an unlawful prior restraint on speech.
In
2008, the mortgage industry website, The Mortgage Lender Implode-O-Meter,
published an article detailing administrative actions taken by the New Hampshire
Banking Department against mortgage lender The Mortgage Specialists, Inc. The
article included a link to a financial document that The Mortgage Specialists
allegedly submitted to the state banking authorities, which the Implode-O-Meter
website had obtained from an anonymous source. Mortgage Specialists sued the
website, demanding that the document be removed from the internet and that the
anonymous source be identified. A Rockingham County Superior Court judge granted
these requests.
The Supreme Court reversed the injunction preventing
publication of the leaked document. The Court drew heavily from a long line of
cases hostile to prior restraints, and noted that “[t]he danger of a prior
restraint is that it ‘has an immediate and irreversible sanction’ which
‘freezes’ speech ‘at least for the time’“ and that “[w]hen . . . the prior
restraint impinges upon the right of the press to communicate news and involves
expression in the form of pure speech . . . the presumption of
unconstitutionality is virtually insurmountable.” The Court rejected the
argument that publishing the loan document violated laws governing
confidentiality and privacy.
In another important part of its decision,
the Supreme Court ruled that New Hampshire’s qualified reporter’s privilege
applied to the Implode-O-Meter website and could protect the identity of the
source who provided the loan document. The court flatly rejected the lender’s
argument that the shield law did not apply to the website “because Implode is
neither an established media entity nor engaged in investigative reporting.”
Instead, the Court ruled that “Implode is a reporter for purposes of the
newsgathering privilege,” noting that “Implode’s website serves an informative
function and contributes to the flow of information to the public.”
“This case stands as a vindication of important First Amendment
principles and the rights of online publishers,” said Sam Bayard, Assistant
Director of the Citizen Media Law Project. “It demonstrates that the First
Amendment extends no less protection to a small website keeping tabs on the
mortgage industry than it does to the New York Times publishing the
Pentagon Papers. It also confirms the common sense insight that legal protection
should be linked to the function of journalism, not to any particular
medium.”
In yet another portion of its ruling, the NH Supreme Court
ordered the lower court to revisit part of its previous order that required the
Implode-O-Meter website to reveal the identity of anonymous posters to the site.
The Supreme Court adopted a standard that provides robust protections for
anonymous and pseudonymous speech online and requires a high showing before such
speakers can be identified. This ruling puts New Hampshire in agreement with a
long line of cases from other states providing these important protections.
About the Citizen Media Law Project
The Citizen Media Law
Project, which is jointly affiliated with the Berkman Center for Internet &
Society at Harvard University and the Center for Citizen Media, provides legal
assistance, training, research, and other resources for individuals and
organizations involved in online and citizen media. The CMLP endeavors to serve
as a catalyst for creative thinking about the intersection of law and journalism
on the Internet. Through the project’s website, www.citmedialaw.org, the active engagement
of lawyers and scholars, and occasional sponsored conferences, project staff are
working to build a community of lawyers, academics, and others who are
interested in facilitating citizen participation in online media and protecting
the legal rights of those engaged in speech on the Internet. For more
information, visit http://www.citmedialaw.org.
About
the Harvard Law School Cyberlaw Clinic
The Cyberlaw Clinic, based at the
Berkman Center for Internet & Society, engages Harvard Law School students
in a wide range of real-world litigation, licensing, client counseling,
advocacy, and legislative projects and cases, covering a broad spectrum of
Internet, new technology, and intellectual property legal issues. The Clinic was
the first of its kind, and it continues its tradition of innovation in its areas
of practice. Among many other areas, the scope of the Clinic’s work includes
litigation, amicus filings, and other advocacy to protect online speech and
anonymity; legal resources and advice for citizen journalists and alternative
media organizations; counseling and legal guidance regarding open access,
digital copyright, and fair use licensing and contract advice, especially
regarding Creative Commons and other “open” licenses; and guidance and amicus
advocacy for effective but balanced protection of children in the areas of
social networking, child pornography, and online exploitation. More information
can be found at http://cyber.law.harvard.edu/clinical.
Contact:
Seth
Young
Berkman Center for Internet & Society
Harvard
University
+1.617.384.9135
syoung@cyber.law.harvard.edu
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