Montana Shield Law Protects Anonymous Commenters

Judge Todd Baugh of Montana's 13th Judicial District ruled on Wednesday that Montana's shield law protects an online newspaper from having to disclose the identities of anonymous commenters. The ruling treats anonymous commenters like other confidential sources, whose identities are commonly protected by state shield laws.

In an oral ruling from the bench, Judge Baugh granted The Billings Gazette's motion to quash a subpoena issued by Russ Doty, a former candidate for local political office. An article on the Gazette's website reports that Doty had previously sued his political opponent, Brad Molnar, for libel. As part of this lawsuit, Doty subpoenaed the Gazette, requesting information about two pseudonymous posters to its website going by the monikers "CutiePie" and "Always, wondering."  According to the Reporters Committee, Doty believed that Molnar might have posted comments under these pseudonyms and that, even if they were not Molnar, the commenters would be helpful witnesses to prove damage to his reputation in the community.

Montana's shield law, known as the Media Confidentiality Act, says that a news organization or any person "connected with or employed by [a news organization] for the purpose of gathering, writing, editing, or disseminating news” may not be required to identify the source of information obtained or prepared in the course of newsgathering. Mont. Code § 26-1-902(1). This is an absolute privilege, and the party seeking information may not overcome it under any circumstances. Many states, like Florida, Illinois, and North Carolina, allow the party seeking information to overcome the privilege by showing a pressing need for the information and its unavailability from other sources.

Montana's shield law does not explicitly encompass online media, but it is hardly surprising that The Billings Gazette qualifies as a protected news organization. Less traditional online platforms like forums or ordinary blogs might not fit so easily within the protections offered by Montana's shield law. The more exciting aspect of the ruling is the court's willingness to equate online commenters with traditional journalistic "sources." But the Gazette's lawyer appears unsurprised:

"There are similarities between old and new technology," Sheehy said. "If a person's speech is anonymous in the printed newspaper, the statute protects it. This is anonymous speech in a different form." (Source: Reporters Committee)

Fair enough, but I think we need to unpack a little further how an anonymous poster can function as a "source" of news. If you view a news article or post as a finished, self-contained piece of journalism, then it is seems ludicrous to claim that anything left in the comments field after-the-fact is provided by a "source." But this is a myopic view of news and the newsgathering process.

Newsgathering is an iterative and interactive process, and some of our best journalism has come in series or installments. Think of Woodward and Bernstein, publishing their revelations over a period of months that eventually led to the collapse of the Nixon administration. The newsgathering process didn't stop when they published the first article, and additional sources very likely came forward in response to each new installment. Things look different in an online environment, but the same underlying roles and functions are (or can be) there. Is there really much of a difference between meeting Deep Throat in a deserted parking lot at 3 a.m. and having him submit an anonymous comment through a website? In both cases, the informant reveals information on condition of anonymity, and in both cases the reporter may or may not use that information to prepare future stories. Surely it shouldn't matter that it's more convenient to post a comment than huff it out to the spooky parking lot. 

I haven't read a transcript of Judge Baugh's ruling yet, so I can't speak to the details, but it seems like he gave due regard to the potential for interactive newsgathering online. For that, I support his decision. I do worry, however, about the practical impossibility of separating out "real" source material in a news site's comments from material that plays no role whatsoever in the newsgathering process.  When newsgathering becomes an automated process that simply accepts user comments, there may be no principled place to draw this line. This, combined with the fact that Montana's shield law provides an absolute privilege, may give other courts facing this issue some pause. 

Update (02/23/2008): Upon receiving a copy of the judge's oral ruling, it became clear to me that the court did not in fact equate website commenters with traditional "sources," as suggested in my post.  Rather, the court held that the commenters' identifying information was "information . . .  gathered, received, or processed in the course of [a reporter's] employment or [a news organization's] business," which is covered by Montana's broad shield law, Mont. Code § 26-1-902(1). See our database entry, Doty v. Molnar (Subpoena to The Billings Gazette), for details.


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Anonymous posts can't libel

This is the best summary of the case I have seen even if Sam did not interview me. A couple of curious things have happened since this reverberated throughout the national media. The link to the original Billings Gazette story above produces a chain of bloggers that I had not seen before and a different rating on the story than this link where you will find posts by me, one of the persons whose identity I sought gloating over the ruling and by the person I am suing and some of his detractors.

You may want to check out the thoughts I have on whose freedom of expression this ruling really damages. I have no clue why the two threads for one story exist. I suspect it happens occasionally in the case of the Gazette because I have seen some threads seem to start over again. That would mean you could get libeled and not even know it unless you had access to both treads. Also, for some reason I had to post my two comments twice before they appeared. Rather than being a rogue editor, I suspect that is some kind of a timeout glitch that stops the post if you take too long to check your facts while writing it. So what I said was not viewed by a number of folks who may have looked at the posts earlier.