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Gilman v. Toll

Closed Contracts Expression

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    March 4, 2019
  • Outcome
    Decision - Procedural Outcome, Motion Granted, Motion Denied
  • Case Number
    18 TRT 00001 1E
  • Region & Country
    United States, North America
  • Judicial Body
    First Instance Court
  • Type of Law
    Civil Law
  • Themes
    Protection of Sources
  • Tags
    SLAPPs

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Case Analysis

Case Summary and Outcome

A district court in Nevada ruled that neither online news portals, nor journalists are protected by the state’s journalist shield laws, unless they are members of the Nevada Press Association. 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 Court ruled that under 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.  However, the Court ruled that Toll’s sources were protected under the shield law from the time Toll joined the Nevada Press Association in August 2017, but sources of information procured before that date were unprotected. Hence, Gilman’s request to extend the discovery deadline to further investigate Toll’s sources before August 2017 was granted.


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 and 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 Court granted a hearing to consider the questions relating to Toll’s standing and journalistic credentials.


Decision Overview

District Judge James E. Wilson delivered the judgment of the Court.

The primary issues before the court were 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.   Specifically, the Court sought to answer:

  1. Whether Toll was a journalist based on his work for the newspaper or by his membership in a press association.
  2. If Toll was a journalist, should the reporters’ privilege protecting sources be set aside for Gilman to obtain the evidence he would need to prove actual malice?
  3. If Toll was not a journalist, then can the Court impose sanctions on Toll for refusing to answer deposition questions?
  4. If Toll was not a journalist, should the Court extend Gilman’s discovery deadline?
  5. Was Gilman entitled to a summary judgment?

The Court first had to determine whether Toll was a reporter. The Court relied on Webster’s Third New International Dictionary 1926 (2002) definition of a reporter as “one who reports new events; a commentator.” Since Toll’s impugned article contained facts or alleged facts, as well as commentary and satire, the Court concluded that he was, in fact, a reporter.

Next, the Court had to determine whether the Story Teller was a newspaper since it was solely an online publication. The Nevada Press Association lists The Story Teller as a “specialized publication,” rather than listing it under “non-daily newspapers” or “daily newspapers,” and the Court took “judicial notice” that all the listed “newspapers” were printed.

Nevada Revised Statutes in general and, NRD 238.020 specifically, define newspapers as printed material. This was an important distinction for the Court, because if a blog could be considered a newspaper, then legal notices required to be published in a newspaper, could also then be published in a blog post. [p. 5] The Court further found that the statutory definitions were “consistent with the usual and natural meaning of ‘newspaper’” as defined by Webster’s Third International Dictionary 1524 2002),  that a newspaper was “a paper that is printed and distributed.” [p.5] The Court concluded that “because Toll did not print the Storey Teller the Story Teller was not a newspaper and, therefore the news media privilege was not available to Toll under the ‘reporter of a newspaper’ provision of NRS 49.275.” [p. 6]

However, since Toll was a member of the Nevada Press Association, the news media privilege still applied, but only from the time he became a member in August 2017. Hence, any articles published before August 2017 did not enjoy the privilege.

Next, the Court had to consider whether Gilman’s need to access Toll’s sources of information to prove actual malice took precedence over the public interest value of the information and the protection of sources. The Court first acknowledged that Gilman as a public figures had to prove actual malice to prove defamation, which was a very high bar. [p.6] The Court relied on precedent set in Newton v. National Broadcasting Co., 109 F.R.D. 522 (1985) to establish that “the Nevada legislature, in granting almost absolute protection to a journalist from disclosure of his  confidential sources, has made a decision to favor the public’s interest in access to information over an individual’s interest in vindicating his reputation in a defamation action.” [p.7] Following that line of reasoning, the Court upheld the news media privilege.

On the question of whether the Court should impose sanctions for Toll’s refusal to answer the deposition questions, the Court found that since Gilman’s questions did not specifically pertain to sources of information obtained before August 2017, (i.e. before Toll was protected by the news media privilege), sanctions were denied.

Finally, the Court found that Gilman failed to prove he was entitled to a partial summary judgment.

In conclusion, the Court ruled that Toll’s sources were protected under the news media privilege from the time Toll joined the Nevada Press Association in August 2017, but sources of information procured before that date were unprotected. Hence, Gilman’s request to extend the deadline to further investigate Toll’s sources before August 2017 was granted.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

The Ruling restricts freedom of expression by not extending shield law protections to online publications and requiring that news organizations and journalists join the Nevada Press Association to have the required credentials for news media privileges. The Court relied on outdated definitions of “newspapers” based on statutes passed in the 1960s. Some international bodies, such as the UN Human Rights Committee, defined journalism broadly to include all actors reporting on issues of public interest, regardless of the mode of disseminating the content they create. On the regional level, the Declaration of Principles on Freedom of Expression adopted by the Inter-American Commission for Human Rights states: “Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.”  Further, the Recommendation adopted by the Council of Europe’s Committee of Ministers expands the definition of who constitutes a journalist: “The term ‘journalist’ means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication.” The UNESCO internet study included proposals to expand the definition of ‘journalist’ to include social media producers and human rights advocates in the context of source protection coverage.  See The Association of Progressive Communication’s Report, “The protection of sources and whistleblowers,” for additional information.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

Official Case Documents

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