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Nevada Judge Says Online News Publications Aren’t Protected By The State’s Journalist Shield Law

By Tim Cushing | TechDirt | March 26, 2019

The internet has upended journalism. It’s no longer limited to long-established press outlets known for printing physical newspapers and periodicals. It can be performed by anyone, using a vast amount of resources, including search engines, public records requests, and the occasional application of shoe leather.

The First Amendment provides protection to these endeavors. Except when it doesn’t. Well-meaning legislators seeking to protect journalists use older definitions of journalism to exclude bloggers and freelancers. Some judges make the same mistake as well, deciding the word “journalist” only covers people trafficking in ink and paper, rather than bits and pixels.

This older definition was in play in a recent decision handed down by a Nevada judge. Rather than recognize that the intent of Nevada’s shield law is to protect journalists, Judge James Wilson decided the law only protects a narrow subset of those practicing the art of journalism.

Nevada shield laws don’t protect online-only news sources unless the websites are members of the Nevada Press Association. That’s the view of First Judicial District Judge James Wilson, who determined yesterday that Sam Toll, editor of an online news site, must reveal his story sources to developer and brothel owner, Lance Gilman, whom Toll has criticized. […]

Wilson said that “because Toll does not print the Storey Teller, the Storey Teller is not a newspaper, and therefore the news media privilege is not available to Toll under the ‘reporter of a newspaper’ provision of (Nevada law).”

According to the court’s interpretation [PDF] of the law, Sam Toll is only shielded from discovery requests for anything that occurred past August 2017, which is when Toll became a member of the Nevada Press Association. Seeing as the Nevada Press Association was willing to extend credentials to Toll and his site, it would stand to reason his work prior to that date was recognized as journalism. Unfortunately, the court feels the outdated definition in the state’s shield law excludes Toll from prior coverage.

Toll publishes his articles on the internet and not in any other format. He does not print his articles. The Legislature did not define “Newspaper” in NRS 49.275 or elsewhere in Chapter 49. The Legislature has defined “newspaper” in several other chapters of the NRS. It appears that under all of the statutory definitions a newspaper must be printed. For example, NRS Chapter 238, which relates to legal notices and advertisements, in 238.020, defines daily, triweekly, semiweekly, weekly and semimonthly newspapers. All of the definitions in NRS 238.020, and apparently throughout the Nevada Revised Statutes, include that a newspaper is printed.

The shield law was enacted in 1969, when printing was the only means of distribution. Its only other update followed six years later. The Reporters Committee for Press Freedom has a comprehensive rundown of the law and its applications, but this appears to be the first time the shield law has been discussed in the context of an online-only publication.

This lack of precedent hurts Toll and others like him. The state offers protections to journalists and their sources, but hasn’t addressed the issue in more than 40 years. Digging around Nevada statutes to define “newspaper” is forest-for-the-trees thinking which results in the completely expected outcome: a newspaper is printed. But journalism isn’t limited to newspapers and it hasn’t been for a long time. The state also protects news broadcasters who don’t offer anything in print. The court’s failure to consider an online news source as the digital equivalent of either of the news sources is short-sighted and it’s going to keep causing problems until the state’s courts or legislators fix this.

March 31, 2019 - Posted by | Civil Liberties |

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