The New Hampshire Supreme Court today issued an important decision upholding the First Amendment rights of online publishers. Harvard Law School’s Cyberlaw Clinic submitted an amicus curiae brief last June on behalf of the Citizen Media Law Project and the Reporters Committee for Freedom of the Press in the case, The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. The reasoning of today’s ruling mirrored arguments in the amicus brief, as the Court concluded that a lower court’s injunction preventing a website from posting a leaked document was an unlawful prior restraint on speech.

In 2008, the mortgage industry website, The Mortgage Lender Implode-O-Meter, published an article detailing administrative actions taken by the New Hampshire Banking Department against mortgage lender The Mortgage Specialists, Inc. The article included a link to a financial document that The Mortgage Specialists allegedly submitted to the state banking authorities, which the Implode-O-Meter website had obtained from an anonymous source. Mortgage Specialists sued the website, demanding that the document be removed from the internet and that the anonymous source be identified. A Rockingham County Superior Court judge granted these requests.

The Supreme Court reversed the injunction preventing publication of the leaked document. The Court drew heavily from a long line of cases hostile to prior restraints, and noted that “[t]he danger of a prior restraint is that it ‘has an immediate and irreversible sanction’ which ‘freezes’ speech ‘at least for the time’“ and that “[w]hen . . . the prior restraint impinges upon the right of the press to communicate news and involves expression in the form of pure speech . . . the presumption of unconstitutionality is virtually insurmountable.” The Court rejected the argument that publishing the loan document violated laws governing confidentiality and privacy.

In another important part of its decision, the Supreme Court ruled that New Hampshire’s qualified reporter’s privilege applied to the Implode-O-Meter website and could protect the identity of the source who provided the loan document. The court flatly rejected the lender’s argument that the shield law did not apply to the website “because Implode is neither an established media entity nor engaged in investigative reporting.” Instead, the Court ruled that “Implode is a reporter for purposes of the newsgathering privilege,” noting that “Implode’s website serves an informative function and contributes to the flow of information to the public.”

“This case stands as a vindication of important First Amendment principles and the rights of online publishers,” said Sam Bayard, Assistant Director of the Citizen Media Law Project. “It demonstrates that the First Amendment extends no less protection to a small website keeping tabs on the mortgage industry than it does to the New York Times publishing the Pentagon Papers. It also confirms the common sense insight that legal protection should be linked to the function of journalism, not to any particular medium.”

In yet another portion of its ruling, the NH Supreme Court ordered the lower court to revisit part of its previous order that required the Implode-O-Meter website to reveal the identity of anonymous posters to the site. The Supreme Court adopted a standard that provides robust protections for anonymous and pseudonymous speech online and requires a high showing before such speakers can be identified. This ruling puts New Hampshire in agreement with a long line of cases from other states providing these important protections.

About the Citizen Media Law Project
The Citizen Media Law Project, which is jointly affiliated with the Berkman Center for Internet & Society at Harvard University and the Center for Citizen Media, provides legal assistance, training, research, and other resources for individuals and organizations involved in online and citizen media. The CMLP endeavors to serve as a catalyst for creative thinking about the intersection of law and journalism on the Internet. Through the project’s website, www.citmedialaw.org, the active engagement of lawyers and scholars, and occasional sponsored conferences, project staff are working to build a community of lawyers, academics, and others who are interested in facilitating citizen participation in online media and protecting the legal rights of those engaged in speech on the Internet. For more information, visit http://www.citmedialaw.org.

About the Harvard Law School Cyberlaw Clinic
The Cyberlaw Clinic, based at the Berkman Center for Internet & Society, engages Harvard Law School students in a wide range of real-world litigation, licensing, client counseling, advocacy, and legislative projects and cases, covering a broad spectrum of Internet, new technology, and intellectual property legal issues. The Clinic was the first of its kind, and it continues its tradition of innovation in its areas of practice. Among many other areas, the scope of the Clinic’s work includes litigation, amicus filings, and other advocacy to protect online speech and anonymity; legal resources and advice for citizen journalists and alternative media organizations; counseling and legal guidance regarding open access, digital copyright, and fair use licensing and contract advice, especially regarding Creative Commons and other “open” licenses; and guidance and amicus advocacy for effective but balanced protection of children in the areas of social networking, child pornography, and online exploitation. More information can be found at http://cyber.law.harvard.edu/clinical.

Contact:
Seth Young
Berkman Center for Internet & Society
Harvard University
+1.617.384.9135
syoung@cyber.law.harvard.edu

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2009/10 Summer Intern Andy Sellars has a nice post about the ruling too: New Hampshire Supreme Court applies free speech rights to online newsgathering.