Back in June, as an intern at the Berkman Center’s Cyberlaw Clinic, I worked with members of the Citizen Media Law Project and the Reporters Committee for Freedom of the Press in drafting an amicus curiae brief (PDF) in the case of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. In this case, a mortgage industry news website obtained documents from New Hampshire and Massachusetts Banking Departments, providing details the ongoing investigation of a New Hampshire mortgage company (an investigation which ended in over $700,000 in fines). Upon publishing those documents the company in question sued the website in New Hampshire state court, ordering that the documents be removed and the source of the documents be revealed. The Rockingham County Superior Court granted these requests, and the case was appealed to the New Hampshire Supreme Court.
We focused on the First Amendment issues at stake case, and there were many: the lower court’s injunction worked a prior restraint on speech, it punished the disclosure of information that did not violate New Hampshire law – and even if it had, federal precedent would prohibit applying that punishment to these facts – and it ordered the disclosure of the identity of an anonymous source, in violation of both U.S. and New Hampshire laws and case precedents. (Our press release following our filing is here.)
Last Wednesday the New Hampshire Supreme Court heard arguments from the parties in the case. Being in DC, I could not make it up to see the argument, but reports from the hearing are coming from Poynter Online, New Hampshire Public Radio, and /.. These reports suggest a great deal of the oral argument was spent discussing whether the rights recognized as awarded to “journalists” should apply to an online website of this nature, particularly the rights which protect disclosure of sources.
I find it interesting that, from what I’ve seen, there’s no record of the court discussing the issue most often advanced in a website publication case: “this isn’t a prior restraint as the material was published before it was removed.” The respondent lead with this in their brief (PDF), but no sources note this as being in the discussion. Instead, it seems as if the reporters’ privilege against revealing anonymous sources was the main tack of the respondent’s oral argument. This is a major hurdle for the respondent, but certainly not the only hurdle: even if they were to persuade the Court that the privilege should not apply to this website, they still would have to deal with the prior restraint and unconstitutional punishment issues raised by the petitioners, and the fact that the statute under which they brought this claim does not appear to create a private right of action. The absence of these arguments from the reported discussion during arguments could suggest that Court has already made up their mind on those issues.
Naturally, when the Court rules I’ll be sure to pass along that information.