This week brings word of two new cases testing whether state shield laws apply to user comments posted on news websites. In Texas, a Taylor County District Court judge ruled that the Abilene Reporter-News may refrain from disclosing the identities of commenters who posted comments to articles about a murder victim and the teenager charged in connection with his death. According to a follow-up story by the Reporter-News, defense counsel in the criminal case had sought the commenters' identities to make sure they weren't chosen as jurors in the trial, which began last week.
Details of the Texas court's decision are sketchy, but reports indicate that the Reporter-News invoked Texas's newly minted shield law, as well as the commenters' First Amendment rights to speak anonymously. The new Texas shield law expressly covers Internet news media and grants protection for both the identity of sources and unpublished materials obtained or prepared while acting as a journalist. See Tex. Civ. Prac. & Rem. Code §§ 22.021, -.023; Tex. Crim. Proc. Code § 38.11, Sec. 3(a)(1)-(2). (For more details on the Texas shield law, see RCFP's informative post.) When we get a hold of a transcript of the court's ruling, it will be interesting to see whether the court characterized the website commenters as "sources" and, if so, how the court justified this characterization.
In Kentucky, a college student filed a John Doe lawsuit and subpoenaed The Richmond Register, seeking the identity of a commenter going by "12bme," who posted a comment on a forum linked to an August 12, 2008 story on the newspaper's website. The news story reported on the college student's ejection from a local mall for wearing a dress -- which she had purchased there -- that mall security deemed too short. According to the Louisville Courier-Journal, 12bme's comment claimed that the student actually was removed because she "had exposed herself to a woman and her children who remarked on the dress." The student maintains that this comment was false and defamatory and seeks 12bme's identity in order to proceed with her lawsuit.
According to press accounts, The Richmond Register seeks to quash the subpoena and argues that 12bme is a "source" protected by the Kentucky shield law (Ken. Rev. Stat. § 421.100). The argument is buttressed in this case because one of The Register's reporters used the comment in writing a subsequent article about the student's lawsuit. Kentucky's shield law is of an older generation than its Texas counterpart and protects only sources of information "published in a newspaper or by a television or radio broadcasting station." This restrictive language might well exclude from coverage most Internet news publishers, but The Richmond Register, as a print newspaper with an online edition, may fit within the statute's terms. The court has not yet ruled on the motion to quash.
This is not the first time courts have struggled with the applicability of state shield laws to user comments. Last fall, courts in Montana and Oregon ruled that their respective shield laws protected the identity of anonymous posters. More recently, an Illinois court came out the other way, declining to protect commenters as "sources" under the Illinois shield law.
