Anonymous Speakers and Confidential Sources: Using Shield Laws When They Overlap Online
2011; Taylor & Francis; Volume: 16; Issue: 1 Linguagem: Inglês
10.1080/10811680.2011.536499
ISSN1532-6926
AutoresJason Martin, Mark R. Caramanica, Anthony L. Fargo,
Tópico(s)Hate Speech and Cyberbullying Detection
ResumoAbstract The development of the Internet as a mass medium has created new tensions between the rights to speak anonymously and to be protected against defamation. Some courts have developed balancing tests to determine when anonymous speakers should be unmasked, the most popular of which generally require some initial showing of prima facie evidence. Other times, shield laws have been used to protect the anonymous when comments have been posted on news organization Web sites. However, news organizations should be cautious when using shield laws to protect anonymity, and judges should evaluate privilege claims as they always have. In other instances, anonymity appears to be adequately protected by summary judgment balancing tests. An approach in which news organizations focus on the type of comment and its potential journalistic contribution in deciding how to protect commenters' identities could help ensure that anonymous speech is properly protected without harming shield laws. Notes Carl Sessions Stepp, Maybe It Is Time to Panic, Am. Journalism Rev., Apr./May 2008, at 22. Id. Id. See Lindsay Gsell, Comments Anonymous: Newspaper Web Sites Wrestle With Offensive Blog Comments, Am. Journalism Rev., Feb./Mar. 2009, at 16. "Commenters" is not a recognized English word, but it has emerged in popular press as the apparent favored alternative to "poster," which has other, more common meanings, and "commentator," which denotes something more formal that the typical online comment on a blog or Web site. See Ansley Schrimpf, Death Threats Spur Release of Web Commenter's Identity, News Media Update, Oct. 27, 2009, available at http://www.rcfp.org/newsitems/index.php?i=11086 (last visited Sept. 25, 2010); Barbara Vitello, Judge Orders Release of Online Commenter's Name to Trustee, Daily Herald, Nov. 9, 2009, available at http://www.dailyherald.com/story/?id=335203&src=3 (last visited Sept. 25, 2010). See Gsell, supra note 4, at 16. See Dennis Ryerson, Story Comments Welcome—If Tone is Civil, Indianapolis Star, Jan. 10, 2010, at B7. Richard Perez-Peña, Unmasking the Commenters: In a Rude Realm, News Sites Rethink Anonymity, N.Y. Times, Apr. 12, 2010, at C1. See Ryerson, supra note 7, at B7. See also Ashley I. Kissinger & Katharine Larsen, Shielding Jane and John: Can the Media Protect Anonymous Online Speech?, Comm. Law., July 2009, at 4 (noting that "anonymous posters bring valuable information to media websites that can enhance not only public dialogue, but also the company's own reporting"). See Beal v. Calabrisi, No. 08-CA-1075 (Fla. Cir. Ct. Oct. 9, 2008), available at www.newsroomlawblog.com/articles/shield-laws (scroll to "Courts Grapple With Anonymous Web Site Posters as 'Sources;'" then follow hyperlink from "quashed" in fifth paragraph (last visited Sept. 25, 2010)); Doty v. Molnar, No. DV 07-022 (Mont. Dist. Ct. Sept. 3, 2008), available at www.citmedialaw.org/threats/doty-v-molnar-subpoena-billings-gazette (last visited Sept. 25, 2010); State v. Mead, No. 10 CRS 2160 (N.C. Super. Ct. Aug. 16, 2010), available at http://www.newsroomlawblog.com/articles/shield-laws (scroll to "North Carolina Superior Court Holds State Shield Law Protects Identities of Newspaper Website Commenters;" follow hyperlink from word "here" in first paragraph) (last visited Sept. 21, 2010); Doe v. TS, No. CV08030693 (Or. Dist. Ct. Sept. 30, 2008), available at www.citmedialaw.org/threats/doe-v-ts (last visited Sept. 25, 2010); State v. Coe, No. 1227878 (Tex. Dist. Ct. June 15, 2010) (copy on file with authors); State v. Martinez, No. 17042-B (Tex. Dist. Ct. June 19, 2009) (copy on file with authors). See, e.g., Lewis Publ'g Co. v. Morgan, 229 U.S. 288 (1913) (upholding the U.S. Post Office's authority to require newspapers to publish certain identifying information in order to qualify for the second-class postal rate). See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960); Bates v. City of Little Rock, 361 U.S. 516 (1960). 362 U.S. at 63–64. Id. at 64. The Court also compared the handbill ordinance to press licensing and sedition laws imposed on the colonies before the American Revolution. Id. at 63–65. The Court cited Bates v. Little Rock, 361 U.S. 516 (1960), and NAACP v. Alabama, 357 U.S. 449 (1958), as evidence that restrictions on free speech could lead to fear of identification and reprisal for the speaker and deter discussion of public affairs. 514 U.S. 334 (1995). See Jennifer B. Wieland, Death of Publius: Toward a World Without Anonymous Speech, 17 J.L. & Politics 589, 599 (2001) (analyzing McIntyre). McIntyre, 514 U.S. at 347 (quoting Roth v. United States, 345 U.S. 476, 484 (1957)). Justice John Paul Stevens wrote that "the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry." Id. at 342. Id. at 347. 536 U.S. 150 (2002). 521 U.S. 844 (1997). Id. at 870. See Shaun Spencer, Cyberslapp Suits and John Doe Subpoenas: Balancing Anonymity and Accountability in Cyberspace, 19 J. Marshall J. Computer & Info. L. 492 (2001) (providing perspective on the precedential weight of Reno in relation to free speech on the Internet). See also Joshua Furman, Cybersmear or Cyber-SLAPP: Analyzing Defamation Suits Against Online John Does as Strategic Lawsuits Against Public Participation, 25 Seattle Univ. L. Rev. 213 (2001); Orit Goldring & Antonia L. Hamblin, Think Before You Click: Online Anonymity Does Not Make Defamation Legal, 20 Hofstra Lab. L. J. 383 (2003); Noah Levine, Note: Establishing Legal Accountability for Anonymous Communication in Cyberspace, 96 Colum. L. Rev. 1526 (1996); Jenifer O'Brien, Putting a Face to a (Screen) Name: The First Amendment Implications of Compelling ISPs to Reveal the Identities of Anonymous Internet Speakers in Online Defamation Cases, 70 Fordham L. Rev. 2745 (2002) (O'Brien also argues for procedural safeguards to protect speakers' rights.); Michael Vogel, Unmasking "John Doe" Defendants: The Case Against Excessive Hand-Wringing Over Legal Standards, 83 Or. L. Rev. 795 (2004). In addition, Victoria Smith Ekstrand, Unmasking Jane and John Doe: Online Anonymity and the First Amendment, 8 Comm. L. & Pol'y 405, 413–16 (2003), provides detailed discussion of the scholarly community's range of positions on anonymous Internet speech. See, e.g., Ashcroft v. Free Speech Coal., 535 U.S. 234 (2000); Doe v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001). Protection for Private Blocking and Screening of Offensive Material, 47 U.S.C.S. § 230 (c) (LEXIS 2010). See Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855 (2000). Id. at 859. Id. at 876–77. Twenty-six states, plus the territory of Guam, have anti-SLAPP statutes: Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Washington. Colorado and West Virginia have judicial doctrine against SLAPP suits, but no legislative statutes. See also California Anti-SLAPP Project, available at http://www.casp.net (last visited Sept. 25, 2010), for updated list of SLAPP statutes and related discussion. See David Sobel, The Process That "John Doe" Is Due: Addressing the Legal Challenge to Internet Anonymity, 5 Va. J.L. & Tech. 3, 14 (2000). See Ekstrand, supra note 21, at 425–27. See also Megan Sunkel, And the I(SP)s Have It … But How Does One Get It? Examining the Lack of Standards for Ruling on Subpoenas Seeking to Reveal the Identity of Anonymous Internet Users in Claims of Online Defamation, 81 N.C. L. Rev. 1189 (2003) (arguing that the similarities between ISPs turning over anonymous speaker identities and the law regarding the journalist's privilege to protect confidential sources may guide developing standards for anonymous online speech). See infra notes 51, 70, and accompanying text, for surveys of other balancing standards and traced the evolution of the procedural protections offered. Id. See infra notes 59–60 and accompanying text, for a discussion of evidentiary standards at the pleading stage. See Mobilisa, Inc. v. John Doe 1, 170 P.3d 712 (Ariz. Ct. App. 2007); Krinsky v. Doe 6, 159 Cal. App. 4th 1154 (Cal. Ct. App. 2008); In re: Does 1–10, 242 S.W.3d 805 (Tex. App. 2007). 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). Id. at 761, 763. Id. at 760. The Dendrite court relied on a standard used in Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), in which the court said the interests of the plaintiff in securing a trademark from infringement must outweigh the right of the anonymous defendant "to participate in online forums anonymously and pseudonymously." Id. at 578. Id. at 760. Id. Id. Id. at 760–61. Id. at 772. Compare Immunomedics, Inc. v. Doe, 775 A.2d 773 (N.J. Super. App. Div. 2001) (an opinion by same judge on same day as Dendrite, finding for plaintiff in breach of duty of loyalty and breach of employee confidentiality case because of need to determine if anonymous speaker was an employee in order to proceed) with id. (in which employment was not a factor in the case). Id. See, e.g., Highfields Capital Mgmt L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2004); Greenbaum v. Google, Inc., 845 N.Y.S.2d 695 (N.Y. Sup. Ct. 2007); Polito v. AOL Time Warner, Inc., No. 03 CV 3218, 2004 Pa. Dist. & Cnty. Dec. LEXIS 340 (Pa. Ct. Comm. Pl. Jan. 28, 2004). The Polito court adopted the prima facie evidentiary requirements of Dendrite and added additional procedural requirements regarding (1) demonstrating the evidence sought is directly related and necessary to the claim(s) asserted; (2) seeking the information in good faith and not for purposes of harassment, intimidation or silencing of critics; and (3) the availability of alternative means of discovering the identity of the anonymous speaker. See Polito, 2004 Pa. Dist. & Cnty. Dec. LEXIS 340, at *20. See also Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008); Alvis Coatings, Inc. v. John Does One Through Ten, No. 3:04CV374-H, 2004 U.S. Dist. LEXIS 30099 (W.D.N.C. Dec. 2, 2004); Ottinger v. Non-Party The Journal News, No. 03892/08, 2008 N.Y. Misc. LEXIS 4579 (N.Y. Sup. Ct. June 27, 2008); Hester v. Doe, No. 10-CVS-361 (N.C. Sup. Ct. June 28, 2010), available at http://www.homeinhenderson.com/documents/06-28-10(1).PDF. The Ottinger court adopted the Dendrite standards but also held that the requirement to set forth proof of actual malice cannot be required at this stage. Krinsky v. Doe 6, 159 Cal. App. 4th 1154 (Cal. Ct. App. 2008); Mortgage Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 999 A.2d 184 (N.H. 2010). 884 A.2d 451 (Del. 2005). Id. at 454. The blog in question was called "Independent Newspapers," and the section in question was on the "Smyrna/Cahill Issues Blog." The anonymous speakers criticized Cahill's leadership skills, energy, character and enthusiasm for his elected position. Id. Using a standard applied in In re Subpoena Duces Tecum to Am. Online, Inc., 52 Va. Cir. 26 (Va. Cir. Ct. 2000). 884 A.2d at 454. Id. Id. (citing Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)). Id. at 457. Id. at 460–61. Id. Id. at 461. Id. The court said the second requirement of the plaintiff, to set forth the exact statements in question, was subsumed in the summary judgment inquiry and made redundant by the need to quote the alleged offending text in the motion. As to the fourth part of the test, which asked the trial court to balance the defendant's First Amendment rights against the strength of the plaintiff's prima facie case, the court found it unnecessary, as it added no protection beyond that already contained within a summary judgment requirement. Id. Id. at 467. Id. Cahill's name appeared in one allegedly defamatory posting as "Gahill," which the trial court judge found to possibly imply that Cahill was having a homosexual relationship. See id. The Cahill court disagreed, finding that misspelling Cahill's name was "just as likely to be a typographical error as an intended misguided insult." Id. The court continued: "Under the summary judgment standard, no reasonable person would interpret the statement to indicate that Cahill had an extra-marital, same-sex affair." Id. This rationale appears to be consistent with a federal district court's opinion in Rocker Management v. John Does 1-20, No. MISC 03-003 3 CRB, 2003 U.S. Dist. LEXIS 16277 (N.D. Cal. May 29, 2003), which used a similar argument to quash a subpoena for discovery of an anonymous speaker's identity. See, e.g., Salehoo Group, Ltd. v. ABC Co., 2010 U.S. Dist. LEXIS 78628 (W.D. Wash. July 12, 2010); Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128 (D.D.C. 2009); Quixtar v. Signature Mgmt Team, 566 F. Supp. 2d 1205 (D. Nev. 2008); Best Western Int'l v. Doe, No. CV-06-1537-PHX-DGC, 2006 U.S. Dist. LEXIS 56014 (D. Ariz. July 25, 2006); Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009); Reunion Indus., Inc. v. Doe, No. GD06-007965, 2007 Pa. Dist. & Cnty. Dec. LEXIS 20 (Pa. Ct. Comm. Pl. Mar. 5, 2007); In re Does 110, 242 S.W.3d 805 (Tex. App. 2007); Lassa v. Rongstad, 718 N.W.2d 673 (Wisc. 2006). But see McMann v. Doe, 460 F. Supp. 2d 259 (D. Mass. 2006) (in which the court, while deciding the case on jurisdictional issues, criticized the Cahill decision on two main grounds). First, the McMann court found that actual malice proofs presented a paradoxical situation in that dispensing of the need to lay bare proof allowed public figures to unmask identities without meeting a crucial element of the law. At the same time, requiring such a proof would "mean no subpoenas would ever issue, and character assassins would be free to trumpet hurtful lies from all corners of the earth." Id. at 267. Second, the McMann court questioned how detailed a plaintiff's factual allegations could ever be when it is required to submit proofs before discovery has occurred. Id. 170 P.3d 712 (Ariz. Ct. App. 2007). Id. at 719–20. Id. at 720. Id. Id. Id. Id. at 720–21. Id. at 721. Id. 966 A.2d 432 (Md. 2009). Id. at 443–44. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999); Mobilisa, Inc. v. John Doe 1, 170 P.3d 712 (Ariz Ct. App., 2007); Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). Brodie, 966 A.2d at 456. Id. at 457. However, in her concurrence, Judge Sally Adkins questioned the need for the balancing test and expressed concern that the majority opinion would create an Internet "superlaw" that would defeat all defamation claims. Id. at 457–59 (Adkins, J., concurring). See, e.g., Doe v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001); In re Subpoena Duces Tecum to Am. Online, Inc., 52 Va. Cir. 26 (Va. Cir. Ct. 2000) (determining that plaintiff should only need to show a legitimate, good faith claim to unmask an anonymous speaker). The case was later reversed on other grounds in Am. Online v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001). See also Virologic, Inc. v. Doe, No. A101571, A102811, 2004 Cal. App. Unpub. LEXIS 8070 (Cal. Ct. App. Sept. 1, 2004). See, e.g., SPX Corp. v. Doe, 253 F. Supp. 2d 974 (N.D. Ohio 2003) (Because comments were statements of opinion and not fact, plaintiff could not state a valid claim.); Rocker Mgmt. v. John Does 1-20, No. MISC 03-003 3 CRB, 2003 U.S. Dist. LEXIS 16277 (N.D. Cal. May 29, 2003). See, e.g., La Societe Metro Cash & Carry France v. Time Warner Cable, No. CV030197400S, 2003 Conn. Super. LEXIS 3302 (Conn. Super. Ct. Dec. 2, 2003) (citing state common law requirements for discovery); Maxon v. Ottawa Publ'g Co., 929 N.E. 2d 666 (Ill. App. Ct. 2010); Klehr Harrison Harvey Branzburg & Ellers v. JPA Dev., Inc., No. 0425, 2006 Phila. Ct. Com. Pl. LEXIS 1 (Pa. Ct. Comm. Pl. Jan. 4, 2006) (determining that state civil procedure law was adequate basis for decision on whether to quash subpoena). See, e.g., In re Richard L. Baxter, Misc. No. 01-00026-M, 2001 U.S. Dist. LEXIS 26001 (W.D. La. Dec. 19, 2001) (applying standard defamation guidelines about matters of public versus private concern to determine that plaintiff had viable case and was entitled to identity of anonymous commenter). A federal district court in New York set the standard for unmasking anonymous persons in regard to copyright infringement claims against users of peer-to-peer (P2P) file-sharing networks. In Sony Music Ent. Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), the court determined that users of such networks were not engaged in "true expression." Id. at 564. The court developed a test for situations in which ISPs were ordered to reveal the identities of allegedly infringing P2P users requiring a plaintiff to establish a prima facie infringement case; make subpoenas specific enough to identify the alleged infringers; show there were no alternative means of finding the information; proving the importance of the subpoenaed information to the infringement claim; and weighing the anonymous user's expectation of privacy. The court said the factors weighed in favor of Sony. Id. at 564-67. Several other courts have followed the Sony court's reasoning. See, e.g., Arista Records LLC v. Does, Civ. No. 1:08-CV-765 (GTS/RFT), 2009 U.S. Dist. LEXIS 12159 (N.D.N.Y. Feb. 18, 2009); Virgin Records Am., Inc. v. John Doe, No. 5:08-CV-389-D, 2009 U.S. Dist. LEXIS 21701 (E.D.N.C. Mar. 16, 2009); Elektra Entm't Group, Inc. v. John Doe, No. 5:08-CV-115-FL, 2008 U.S. Dist. LEXIS 100564 (E.D.N.C. Sept. 26, 2008); Interscope Records v. Does 1-14, 558 F. Supp. 2d 1176 (D. Kan. 2008); London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153 (D. Mass. 2008); Sony BMG Music Entm't v. John Doe, No. 5:08-CV-109-H, 2008 U.S. Dist. LEXIS 106088 (E.D.N.C. Oct. 21, 2008); Warner Bros. Records, Inc. v. John Doe, No. 5:08-CV-116-FL, 2008 U.S. Dist. LEXIS 100566 (E.D.N.C. Sept. 26, 2008); UMG Recordings, Inc. v. Does 1-4, 64 Fed. R. Serv. 3d (Callaghan) 305 (N.D. Cal. 2006); Elektra Entm't Group, Inc. v. Does 1-9, No. 04 Civ. 2289 (RWS), 2004 U.S. Dist. LEXIS 23560 (S.D.N.Y. Sept. 7, 2004). See also Recording Ind. Assoc. of Amer. v. Verizon Internet Serv., Inc., 257 F. Supp. 2d 244 (D.D.C. 2003), rev'd on other grounds, 351 F.3d 1229 (D.C. Cir. 2003), in which the district court determined that constitutional protection for anonymous speech was reserved for "core First Amendment expression," while in alleged copyright infringement cases, the protection should be "minimal." Id. at 259–60. See, e.g., Freedman v. Am. Online, Inc., 412 F. Supp. 2d 174 (D. Conn. 2005) (finding that anonymous speech protections are not a defense to an accusation of using e-mail to send threats to someone else); Polito v. AOL Time Warner, Inc., No. 03 CV 3218, 2004 Pa. Dist. & Cnty. Dec. LEXIS 340 (Pa. Ct. Comm. Pl. Jan. 28, 2004) (The right to speak anonymously is outweighed by a plaintiff's right to sue for harassing electronic communications when plaintiff can make prima facie case.). See, e.g., In re Anonymous Online Speakers, 611 F.3d 653 (9th Cir. 2010). In this case, the Ninth Circuit held that the evidentiary standard announced by the Delaware Supreme Court in Doe v. Cahill in the context of political speech "extends too far" in cases when non-political speech is at issue. Id. at 661. However, the court did not announce what standard should be applied in commercial speech contexts, noting only that in the case at bar "even under the strictest test outlines in Cahill, there was no clear error" when the lower court ordered disclosure of certain speakers' identities. Id. Of note, the Ninth Circuit found that statements disparaging a competing business were the "types of 'expression related solely to the economic interests of the speaker and its audience' and are thus properly categorized as commercial speech" (citing Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 561 (1980)). Id. at 657. See Daniel J. Solove, A Tale of Two Bloggers: Free Speech and Privacy in the Blogosphere, 84 Wash. U. L. Rev. 1195 (2006). See also Daniel J. Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet 146-59 (2008) (arguing that the law itself encourages low value discourse online); Nathaniel Gleicher, John Doe Subpoenas: Toward a Consistent Legal Standard, 118 Yale L. J. 320 (2008) (arguing for anonymous speech protection distinctions based upon private/public figure and private/public matters of concern classifications). The statutory protections found in Section 230(c) of the Communications Decency Act—which provide immunity from defamation lawsuits for ISPs, and to some extent Web site/blog operators—breed an online culture where people are more apt to publish low value, private or defamatory speech). But see Eugene Volokh, Freedom of Speech and Informational Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stan. L. Rev. 1049 (2000) (for a contrary view on the proper limits of privacy and what speech individuals should be free to consider and comment upon). See Lyrissa Barnett Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 Notre Dame L. Rev. 1537 (2007). Id. at 1591-92, 1599. In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court rejected 5-4 the proposition that the First Amendment conferred a privilege on journalists allowing them to defy grand jury subpoenas that would require them to reveal their sources. The three journalists whose cases were consolidated on appeal all sought to avoid appearing before state or federal grand juries investigating crimes that their sources were suspected of committing or knowing about. Justice Lewis Powell's concurring opinion, however, expressly limited the ruling to the facts of the three cases. Id. at 709–10 (Powell, J., concurring). 408 U.S. 665 (1972). Id. at 706. The Court also said it was powerless to stop state courts from interpreting their own constitutions as requiring protection for confidential sources. Id. Baker v. F. & F. Inv., 470 F.2d 778 (2d Cir. 1972) (finding that civil litigants did not have a "compelling concern" sufficient to overcome journalist's right to conceal sources); Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972) (finding that employees of a Black Panther newspaper were within their rights to refuse to answer grand jury questions about editorial decisions and employees); Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972) (upholding dismissal of libel suit and judge's decision not to require defendant journalist to reveal his sources). See, e.g., LaRouche v. NBC, 780 F.2d 1134 (4th Cir. 1986) (civil case); United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986) (criminal case); Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) (civil case); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980) (libel case); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980) (libel case); Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979) (civil case); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) (civil case); Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975) (grand jury). In re Grand Jury Subpoena, 810 F.2d 580 (6th Cir. 1987). McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003). See SB 211, available at http://www.kslegislature.org/bills/2010/211.pdf (last visited Sept. 25, 2010) (The Kansas state legislature passed a shield law in the spring of 2010 that had not been codified at this writing.). See also Ala. Code § 12-21-142 (Michie 1995, Supp. 2008); Alaska Stat. §§ 09.25.300 to 09.25.390 (2008); Ariz. Rev. Stat. Ann. § 12-2237 (West 2003, Supp. 2008); Ark. Code Ann. § 16-85-510 (Michie 1987, Supp. 2007); Cal. Evid. Code § 1070 (West 2009); Colo Rev. Stat. Ann. § 13-90-119 (West 2005, Supp. 2008); Conn. Gen. Stat. § 52-146t (West 2005, Supp. 2009); Del. Code Ann. tit. 10, §§ 4320 to 4326 (Michie 1999, as amended, Supp. 2008); D.C. Code Ann. §§ 16-4701 to 16-4704 (West 2001, Supp. 2009); Fla. Stat. Ann. § 90.5015 (West 1999, Supp. 2009); Ga. Code Ann. § 24-9-30 (Michie 1995, Supp. 2009); Haw. Rev. Stat. Ann. § 4-33-621 note (LEXIS 2009); 735 Ill. Comp. Stat. ann. §§ 5/8-901 to 5/8-909 (West 2003, Supp. 2009); Ind. Code Ann. §§ 34-46-4-1 to 34-46-4-2 (LEXIS Law Pub. 1998, Supp. 2008); Ky. Rev. Stat. § 421.100 (Michie 1992, Supp. 2008); La. Code Evid. Ann. arts. 1451 to 1459 (West 1999, Supp. 2005); Me. Rev. Stat. ann. tit. 16, § 61 (LEXIS 2009); Md. Ann. Code, Cts. & Jud. Pro., § 9-112 (Michie 2002, Supp. 2008); Mich. Comp. Laws Ann. § 767.5a (West 2000, Supp. 2009); Minn. Stat. Ann. §§ 595.021 to 595.025 (West 2000, Supp. 2008); Mont. Code Ann. §§ 26-1-901 to 26-1-903 (2007); Neb. Rev. Stat. Ann. §§ 20-144 to 20-147 (LEXIS Law Pub. 2008, Supp. 2008); Nev. Rev. Stat. Ann. § 49.275 (Michie 2002, Supp. 2007); N.J. Stat. Ann. §§ 2A:84A-21 to 2A:84A-21.13 (West 1994, Supp. 2009); N.Y. Civ. Rights Law § 79-h (West 1992, Supp. 2009); N.C. Gen. Stat. Ann. § 8-53.11 (West 2000, Supp. 2008); N.D. Cent. Code § 31-01-06.2 (Michie 1996, Supp. 2007); Ohio Rev. Code Ann. §§ 2739.04 & 2739.12 (Anderson 2000, Supp. 2009); Okla. Stat. Ann. tit. 12, § 2506 (West 2009); Or. Rev. Stat. Ann. §§ 44.510 to 44.540 (2007); 42 Pa. Con. Stat. Ann. § 5942 (West 2000, Supp. 2009); R.I. Gen. Laws §§ 9-19.1-1 to 9-19.1-3 (Michie 1997, Supp. 2005); S.C. Code § 19-11-100 (Lawyers Co-Op 1985, as amended, Supp. 2008); Tenn. Code ann. § 24-1-208 (Lexis Law Pub. 2000, Supp. 2008); Tex. Civ. Prac. & Rem. Code § 22.023 (LEXIS 2010) & Tex. Code Crim. Proc. art. 38.11 (LEXIS 2010); Wash. Rev. Code Ann. § 5.68.010 (West 2009); Wis. Stat. § 885.14 (2010). N.M. Rules Ann. § 11-514 (2009); Utah R. Evid. Rule 509 (LEXIS 2010). See, e.g., In re Contempt of Wright, 700 P.2d 40 (Idaho 1985) (state and federal constitutions); Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977) (state constitution); Sinnott v. Boston Ret. Bd., 524 N.E.2d 100 (Mass. 1988) (common law); State ex. rel. Classic III, Inc. v. Ely, 954 S.W.2d 650 (Mo. Ct. App. 1997) (federal constitution); Opinion of the Justices, 373 A.2d 644 (N.H. 1977) (state constitution); Brown v. Commonwealth, 204 S.E.2d 429 (Va. 1974) (federal constitution); State v. St. Peter, 315 A.2d 254 (Vt. 1974) (federal constitution). Mississippi does not have any case law at the appellate level on the journalist's privilege, but the privilege has been recognized in unreported lower-court cases. See Practising Law Institute, 3 Communication Law 2007 388-89, 510 (2007). See Hatfill v. Mukasey, 539 F. Supp. 2d 96 (D.D.C. 2008), appeal dismissed, No. 08-5049, U.S. App. LEXIS 23804 (D.C. Cir. Nov. 17, 2008) (The appeals court dismissed a civil contempt order against former USA Today reporter Toni Locy. The district court levied progressive fine totaling $45,000 for failing to identify possible sources for stories about Dr. Steven Hatfill, a former suspect in anthrax poisonings in 2001 who was suing the government for violating the Privacy Act by leaking personal information about him to the press.). See also Drogin v. Wen Ho Lee, 547 U.S. 1187 (2006) (rejecting appeals of four reporters ordered to give depositions to plaintiff in Privacy Act litigation against government); Thomas v. Wen Ho Lee, 547 U.S. 1184 (2006); In re Grand Jury Subpoena, Joshua Wolf, 201 Fed. Appx. 430 (9th Cir. 2006) (unpub.) (affirming a district court order that freelance videographer and blogger turn over tapes from San Francisco protest rally or face jail time for contempt); New York Times v. Gonzales, 459 F.3d 160 (2d Cir. 2006), stay denied, 127 S. Ct. 721 (2006) (overturning district court finding in favor of reporters whose phone records were subpoenaed by government in investigation of leak about search of Islamic charities' offices for evidence of ties to terrorist organizations); Lee v. Dep't of Justice, 413 F.3d 53 (D.C. Cir. 2005), cert. denied sub nom.; In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005), cert. denied sub nom., United States v. Miller, 545 U.S. 1150 (2005) (finding that no privilege protected reporter from grand jury subpoena for identity of a source who told her name of Central Intelligence Agency operative); In re Special Proceedings, 373 F.3d 37 (1st Cir. 2004) (upholding lower court order that television reporter comply with subpoena for identity of source who gave him copy of surveillance tape sealed as part of evidence in public corruption case); In re Grand Jury Subpoenas to Fainaru-Wada and Williams, 438 F. Supp. 2d 1111 (N.D. Cal. 2006) (denying a motion to quash subpoenas to reporters seeking identity of source for leaked grand jury transcripts regarding investigation of steroid use by professional athletes); Scott Shane & Eric Lichtblau, Scientist Is Paid Millions by U.S. in Anthrax Suit, N.Y. Times, June 28, 2008, at A1 (announcing that Hatfill had settled case with the United States). See 155 Cong. Rec. H4209 (daily ed. Mar. 31, 2009) (voice vote on H.R. 985); 155 Cong. Rec. S13032 (daily ed. Dec. 11, 2009) (reporting introduction of S. 448 from committee). Branzburg, 408 U.S. 665, 743 (1972) (Stewart, J., dissenting). Ekstrand, supra note 21, at 425–26. O'Grady v. Superior Court, 139 Cal. App. 4th 1423 (Cal. Ct. App. 2006). Id. at 1459. See also Mortgage Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., No. 2009-262, 2010 N.H. LEXIS 41 (N.H. May 6, 2010) (determining that online mortgage lender rating service could be protected by journalist's privilege recognized under state constitutional law). See Laurence B. Alexander, Looking Out for the Watchdogs: A Legislative Proposal Limiting the Newsgathering Privilege to Journalists
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