Nevada's Top Court Says The State's Journalist Shield Law Also Applies To Bloggers

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Some good news for journalists in Nevada, via FourthAmendment.com. A decision made earlier this year by a state court has been reversed, resulting in an expansion of the protections offered by the state's journalist shield law.In March, Judge James Wilson -- overseeing a defamation lawsuit filed by Storey County Commissioner Lance Gilman against blogger Sam Toll -- decided the journalist shield law only protects journalists who work for printed newspapers. While it acknowledged the 1969 law also covers television journalists, it refused to extend these protections to Sam Toll and his blog, the Storey Teller.Toll was actually a member of the Nevada Press Association at the time he was sued, but Judge Wilson said that didn't matter because the alleged defamation occurred before he received these credentials. Wilson ordered Toll to divulge his sources. Toll challenged this decision, resulting in the state's Supreme Court letting the lower court know it can't define "journalism" so narrowly.The decision [PDF] says the court needs to buy a few more dictionaries. The definition of "print" the lower court used isn't the only one available.

Because "newspaper" was not defined by NRS 49.275, the district court relied on the definition of newspaper in other statutes as well as in a dictionary. When examining statutory definitions, the district court found that in order to constitute a newspaper, the media source must be "printed." This was consistent with the dictionary definition of newspaper the district court used, which also stated a newspaper is "printed." Therefore, because Toll's blog was not printed in physical form, the court ruled it could not be a newspaper. However, if the district court had pursued the literal meaning of "print" further, it would have found that it could apply to digital media as well as physical form. In one dictionary, "print" is defined as "to make a copy of by impressing paper against an inked printing surface." Print, Webster's Third New Int'l Dictionary (2002). However, in another dictionary, "print" is defined as "to display on a surface (such as a computer screen) for viewing." Print, Merriam-Webster's Collegiate Dictionary (11th ed. 2020). Because "print" possesses two definitions that are equally applicable to this statute, the district court erred in limiting itself to only one.

While the drafters of NRS 49.275 knew what a newspaper was, they likely did not contemplate it taking digital form. But just because a newspaper can exist online, it does not mean it ceases to be a newspaper. To hold otherwise would be to create an absurd result in direct contradiction to the rules of statutory interpretation. In Kyllo, the court considered technological advancements and arrived at the conclusion that one can "search" in more than one way. See 533 U.S. at 31-33. We consider technological advancements as well and arrive at the conclusion that one can "print" in more than one way.

While we decline to resolve whether or not a blog falls under the definition of a newspaper, we conclude that a blog should not be disqualified from the news shield statute under NRS 49.275 merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form.

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Bogus DMCA Notices Still A Huge Problem As Apple Gets Unfairly Blamed For Reddit Takedown

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As we've discussed in the past, the DMCA system is enforced in such a way as to make it wide open for abuse. One of the chief problems is that, while the DMCA does include potential punishments for filing bogus notices under 512(f), the courts have traditionally appeared to have forgotten that this part of the law even exists. The end result is that anyone looking to censor or extort others by either filing or threatening to file bogus DMCA notices is mostly free to do so without risk. The times when 512(f) actually gets a spotlight are so few and far between as to be news when it happens. This has been going on, and has been pointed out by various publications, for years.And yet it still goes on. Earlier, Mike wrote about Apple sending a questionable DMCA takedown to Twitter regarding a tweet, but there was a separate part of that story. Beyond the takedown to Twitter -- which everyone (including Apple) recognized as coming from Apple -- there were other takedowns sent to Reddit, leading the subreddit /r/jailbreak to go into lockdown. This followed the removal of several posts discussing how that Apple encryption key was taken down (as explained in the earlier post). Many leapt to the conclusion in both the media and wider internet that Apple was behind the shuttering of /r/jailbreak as well.

Since Apple was behind the takedown on Twitter and the most obvious culprit in respect of the DMCA takedowns on Reddit, many fingers were pointed towards the Cupertino-based company. However, despite the best efforts of the moderators on /r/jailbreak, Reddit’s admins would not provide the necessary information to identify who filed the DMCA notices or on what grounds.With uncertainty apparently the order of the day, moderators of the discussion forum took the drastic decision to put their platform into lockdown.“Locking down the subreddit to prevent new threads is one of the ‘standard’ responses moderators take to show the admins that the mod team isn’t playing, and that they are serious and ready to remedy the issue,” a post from the mods reads. “Too many DMCA notices eventually end up with a warn and a ban (or just a ban) from the admins to whatever subreddit these notices are being sent to.”

And, according to fellow developer ‘axi0mX’, the fake notice wasn’t particularly well constructed either.“We reviewed it and confirmed that it was someone impersonating Apple. It was not sent from their law firm, which is Kilpatrick Townsend. There are issues with grammar and spelling,” he revealed.“This notice was obviously not submitted in good faith, and it was not done by someone authorized to represent Apple. Not cool. They could be sued for damages or face criminal charges for perjury.”

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