Case Summary and Outcome

The Nevada Supreme Court ruled that online news portals, and journalists are protected by the state’s journalist shield laws. The case concerned a defamation action brought by Gilman, a local public figure, against Toll, the owner and editor of a local news portal in relation to a series of articles about Gilman’s business activities. Gilman, as a public figure had to prove actual malice, and therefore sought evidence obtained from Toll’s sources. The District Court had earlier ruled that under Nevada statutes online news sources were not “newspapers” since they did not appear in print, and thus would need to be members of the state’s press association to receive protection. A writ petition was filed in appeal in the Supreme Court by Toll against this order. The Supreme Court, rejecting this decision of the District Court, interpreted Nevada’s shield law, which was written before the advent of the internet, to include online news portals within the definition of newspaper. In order to specifically determine whether Toll’s blog qualified as a “newspaper” the Supreme Court remanded the matter back to the District Court. The District Court, upon remand, examined the functions of Toll’s online blog and held that his portal was “functionally equivalent” to a newspaper. Thus, Toll’s sources of information were protected under the shield law from the time he had published the allegedly defamatory content against Gilman. Hence, Gilman’s request to investigate Toll’s sources was rejected. 

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Facts

Sam Toll operates an online news portal, The Storey Teller, in Storey County, Nevada. The newspaper publishes standard local news including fact-based articles on the actions of elected and public officials and other community issues in the public interest. The news site also publishes opinion pieces, commentary and satire. The Storey Teller is only an online publication and does not appear in print.

Toll has been a member of the Nevada Press Association since August 2017 and the Press Association recognized his website as a “specialized publication.”

Lance Gilman is a wealthy and well-known local businessman. He owns the Mustang Ranch Brothel, is an executive at the Tahoe Reno Industrial Center and Blockchains LLC Government Relations, and holds the post of Storey County Commissioner.

In a series of five articles published from April through December 2017, Toll investigated Gilman’s living arrangements and reported that Gilman claimed to live in a double-wide trailer behind the brothel in order to meet the residency requirement for his position as the County Commissioner, whereas his primary residence was in another district.

In December 2017, Gilman brought an eight-count defamation suit against Toll in relation to the articles. In response, Toll filed an Anti-Slapp motion to dismiss the lawsuit. The Judge dismissed seven of the eight counts and allowed Gilman to research and present evidence related to the one remaining charge. Specifically, Gilman had to prove actual malice on the part of Toll. This meant he had to  prove that Toll knew the allegations in the articles were false or had doubts as to their veracity, yet proceeded to publish despite that awareness. Toll invoked the Nevada’s Reporter Shield Law and refused to answer deposition questions which would have revealed his sources for the articles about Gilman’s living arrangements.

According to Nevada’s Shield Law, NRS 49.275, the person invoking the privilege bears the burden of proving the privilege applies. The law provides in part:

No reporter, former reporter or editorial employee of any newspaper, periodical or press association…may be required to disclose…the source of any information procured or obtained by such a person, in any legal proceedings, trial or investigation:

Before any court… [p. 3]

Gilman, however, argued that Toll was not a journalist and that The Story Teller was not a newspaper. The District Court at Nevada granted a hearing to consider the questions relating to Toll’s standing and journalistic credentials.

The primary issues before the District Court in Nevada was whether Toll’s online publishing activities constituted journalism and if so, to what extent, his sources would be protected from Gilman’s investigation to prove actual malice. 

The Court determined that Toll was a reporter and his impugned article contained facts or alleged facts, commentary and satire. However, he did not ‘print’ the Story Teller in accordance with the specific requirement for newspapers to be a ‘printed’ material under Nevada Revised Statutes. Thus, it could not be considered a newspaper. Nevertheless, the news media privilege was still available to him from August 2017 by virtue of his membership in the Nevada Press Association. However, the media privilege did not extend to any articles published by him before August 2017. 

In conclusion, the District Court granted Gilman’s request to further investigate Toll’s sources before 2017 as he did not belong to the press association at the time that he made his claims against Gilman.

With regards to this decision, Toll filed a writ of mandamus with the Nevada Supreme Court requesting “the District Court vacate the District Court’s order requiring disclosure of his confidential sources and dismiss this action outright or order the District Court to rule on Toll’s motion to dismiss as submitted.”

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Decision Overview

Gibbons, C.J. gave the ruling of the Court.  

The Supreme Court had considered the writ petition filed by Toll as it presented a legal issue of significant public policy and judicial economy concerning the statutory interpretation of the shield statute, NRS 49.275. The central issue for determination was whether digital media fell within the protection of this shield statute. 

In determining the same, it disagreed with the earlier findings of the District Court that Toll was “not protected by NRS 49.275 because he was not associated with a newspaper”. It found the reasoning that “because Toll’s blog is not physically printed, it cannot be considered a newspaper” to be incorrect. 

The Court then proceeded to interpret NRS 49.275 de novo. It relied on the canons of interpretation laid down in the case of Desert Valley Water Co. v. State, 104 New. 718 (1988) which states “if the plain meaning of a statute is clear on its face, then the Court will not go beyond the language of the statute to determine its meaning.” Further, “the words of the statute should be construed in light of the policy and spirit of the law, and the interpretation made should avoid absurd results.” 

Applying these canons of interpretation to NRS 49.275, the Court found that District Court had erred in its finding that for Toll’s blog to qualify as a newspaper under NRS 49.275 it must only be printed in physical form. The District Court had only relied on one dictionary i.e. Webster’s Third New International Dictionary (2002) but not considered the definition in another dictionary i.e. Merriam-Webster’s Collegiate Dictionary (11th Edn. 2020) which defined print as “to display on a surface” (such as a computer screen) for viewing. 

The Supreme Court did not delve into whether Toll’s blog should be considered within the definition of a newspaper however it did state that blogs per se should not be disqualified from the news shield statute under NRS 49.275 on the sole ground that they were digital and not physically printed. 

In doing so, it identified the technological advancement which had taken place since NRS 49.275 was amended in 1975. The drafters of the law might not have contemplated that newspapers would take a digital form. However, it is a rule of interpretation, as put forth by American lawyers Antonin Scalia and Bryan A. Garner in their book Reading Law: The interpretation of Legal Texts 86 (2012) that “drafters of every era know that technological advances will proceed apace and that the rules they create will one day apply to all sorts of circumstances that they could not possibly envision…”

Conclusively, it was stated that the District Court had erred by granting Gilman’s motion to compel. 

The Supreme Court then proceeded to review whether the District Court had erred in granting Gilman’s motion for limited discovery because he had failed to make a prima facie showing in his opposition to Toll’s anti-SLAPP motion to dismiss. 

According to NRS 41.660(4) “the court shall allow limited discovery” when a party needs access to information held by the opposing party. The Supreme Court affirmed the findings of the District Court and stated that it did not “arbitrarily exercise its discretion while ordering limited discovery to Gilman” as in order to ascertain whether Toll acted with actual malice, it was necessary to know what evidence he had relied upon. Thus, an order granting limited discovery was appropriate. 

In conclusion, the Court partly granted the petition by remanding with instructions for the District Court to determine whether Toll’s blog fell under the protection of the news shield statute and partly rejected the petition by holding that the District Court did not arbitrarily order limited discovery to Gilman. 

The District Court’s decision after the case was remanded by the Supreme Court was given by Judge James E. Wilson Jr. 

The District Court had to primarily determine whether Toll qualified for protection under the news shield statute. In order to do so it had to find whether Toll’s blog could be treated as functionally equivalent to a newspaper. 

Toll published topics of current events in his blog including arts, sports, elections, arrests, a criminal preliminary hearing, etc. These articles were analogous to what one would expect in a small town newspaper. These topics were researched before being published and later, they were communicated to the public by publishing them on the forum. It was thus, concluded that the blog was the functional equivalent a newspaper and therefore a newspaper. 

Considering that Toll’s blog qualified as a newspaper, the District Court held that news media privilege is applicable to Toll and his articles were protected under the news shield statute at the time the libellous articles were published. 

Conclusively, the District Court held that Gilman would not be allowed to receive any information about Toll’s unnamed sources and his motion to conduct discovery was been denied. 

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