It’s a good day for the First Amendment – or, in this case, the New Hampshire constitutional analogue.
The New Hampshire Supreme Court issued an opinion this morning (PDF) vacating, reversing, and remanding the case of Mortgage Specialists Inc. v. Implode-Explode Heavy Industries, Inc. I worked on an amicus brief in this case with the Citizen Media Law Project and the Reporter’s Committee for Freedom of the Press, advocating for this outcome.
The case surrounds the Mortgage Lender Implode-O-Meter, a website dedicated to chronicling the collapse of the mortgage industry with insider reporting and primary sources (a bit like a Gawker or Smoking Gun for mortgage lenders). In 2008 the website obtained a confidential filing submitted by The Mortgage Specialists, Inc. (“MSI”) to the New Hampshire Banking Department. The chart contained detailed information on lending activity, and was submitted pursuant to an investigation on MSI’s lending activity. After the website posted this material, an anonymous commentator made statements which MSI interpreted as libelous of the company and its president. MSI responded to this publication by filing a complaint in New Hampshire court. Without discussing the First Amendment issues at stake, a New Hampshire Superior Court ordered that the Loan Chart be removed from the website, the source of the Chart be disclosed, and the identity of the anonymous commentator be revealed for possible libel charges.
As I noted in two earlier pieces, the CMLP and RCFP argued that this order violated both state and federal constitutions, as well as a the New Hampshire common law reporters’ privilege. (The amicus brief is here as a PDF.) We argued that the injunction removing content from a website works a prior restraint on speech, as even those who could have accessed the information prior to the court order would no longer be able to do so. As a prior restraint, the court had to demonstrate a government interest of the highest order to overcome the free speech issue at stake. Cases like the famed Pentagon Papers Case demonstrate just how high this burden is. We further argued, even assuming this is not a prior restraint, the government cannot punish this speech consistent with the United States Supreme Court case of Bartnicki v. Vopper and the First Circuit’s Jean v. Massachusetts State Police. (Constitutional scholar Eugene Volokh of the Volokh Conspiracy took interest in the case too, and gave our brief some very kind words.)
The New Hampshire Supreme Court echoed these concerns in their opinion this morning. The court rejected MSI’s argument that the website was not entitled to a reporter’s privilege, noting that “[t]he fact that Implode operates a website makes it no less a member of the press.” In addressing the alleged crime committed by the source of the Chart, the court adopted the disclosure requirements of the First Circuit case Bruno & Stillman v. Globe Newspaper Co: MSI must demonstrate that the information sought is critical to their claim, cannot be obtained from other sources, and persuade the court that their interest in obtaining the information outweighs Implode-O-Meter’s interest in confidentiality.
Turning to the anonymous commentator’s allegedly libelous comments, the court adopted the test of the New Jersey Superior Court of Appeals in Dendrite International, Inc. v. Does, requiring a plaintiff to render efforts to inform the anonymous commentator, identify the particular allegedly libelous speech, make out a prima facie case for libel, and persuade the court on a balance of the equities.
For me, the most exciting part of this opinion is the Court’s approach to the prior restraint question. After a lengthy section discussing the extreme disfavor of prior restraints on publication, the court said the following:
Although the injunction here prohibits republication of the Loan Chart and postings, rather than their publication in the first instance, the injunction is nevertheless a restriction on what Implode may publish in the future. Accordingly, we conclude that the injunction effectively functions as a prior restraint that “freezes” speech at least for a time.
Once this was found to be a prior restraint, the Court seemed to have no problem dismissing the interest here as far below that needed to issue an injunction. The court accordingly reversed on the injunction and remanded to consider the qualified reporter’s privilege and the Dendrite test for anonymous commentators.
Finding a reporters’ privilege for online journalists is wonderful news (especially in light of the question coming up in the whole Gizmodo/iPhone situation), but I think the real gold here is in the Court’s approach to prior restraint. The Court adopts congruent but discrete reasoning compared to the CMLP/RCFP amicus brief. Our brief focused a good deal on the constitutional right to make the same speech as that which is enjoined: even those who previously read the content could no longer access that information, so for purposes of public debate it’s as if the speech was never there. The court seems to focus on how the injunction impacts future speech: the injunction prevents new commentary and discussion surrounding the same information. These are complimentary arguments, but embrace an interesting nuance to the prior restraint question. Either way, the First Amendment risk of removing content from the Internet is brought into sharp focus, and receives appropriately high protection. Here’s hoping other states follow New Hampshire’s lead in this area.
(While I worked with a number of folks on the brief, the opinions of this post and blog in general are mine and mine alone.)