I just ran across Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., a very interesting case heard last month by the New Hampshire Supreme Court. Despite its name, Implode-Explode Heavy Industries is a Web site that publishes stories about housing finance. Someone leaked it a document that Mortgage Specialists filed with the New Hampshire regulatory authorities — a document that, under New Hampshire law, was apparently supposed to be kept confidential — and Implode-Explode published it. Mortgage Specialists sued, and the judge ordered it to take down the document, take down some statements posted by an anonymous commenter (which the judge found were defamatory), and to identify the source of the document and of the comments.
This raises pretty serious First Amendment questions, as well as other questions. The Supreme Court held in Bartnicki v. Vopper that a speaker is entitled to publish speech on matters of public concern even when the speech consisted of a third party’s illegal interception of a phone conversation (so long as the speaker isn’t in cahoots with the illegal intercepter). I think the same should apply to illegally leaked information. There are also potentially interesting questions regarding journalists’ qualified privilege not to reveal confidential sources (New Hampshire law expressly recognizes such a privilege). There’s more on the subject, including the briefs, here. The Citizens Media Law Project / Reporters Committee for Freedom of the Press amicus brief, filed by Harvard Law School’s Berkman Center for Internet & Society, strikes me as very good.
tarheel says:
The trial court order hits the trifecta of being utterly incoherent, wrong as a matter of state law, and wrong as a matter of constitutional law. How he reads the state statute to make it illegal for a web site to publish the chart is beyond me. How he thinks his read of the law comports with Bartnicki (or Florida Star v. BJF) is even more mystifying.
I should also mention that he completely ignores the First Amendment right of the commenter to remain anonymous, or at least gives it only the barest of treatments. This flies in the face of the clear trend nationally when dealing with anonymous internet commentary.
December 2, 2009, 5:20 pmDavid Schwartz says:
I just started reading the ruling and hit the first “Wtf?!”. It’s too good not to post:
Wtf?!
December 2, 2009, 5:44 pmwws says:
It’ll be interesting to see how the New Hampshire Supremes rule.
I think that New York Times Co. v. United States, 403 U.S. 713 (1971), would have at least some bearing here. Of course, that case was a matter of executive privilege and federal law while this is state law with privacy considerations, but it should still be applicable.
The public’s right to know is usually given pretty wide latitude, and the order to reveal an anonymous source is outrageous unless there’s some clear and convincing evidence that this source is involved in the commission of a crime. Looks like Mortgage Specialists are just mad about what he said and can’t actually link him to the document in question – and that’s no reason to disclose his true name.
December 2, 2009, 5:48 pmtroll_dc2 says:
I hope that somebody downloaded the document before it got/gets taken down.
December 2, 2009, 6:02 pmArthurKirkland says:
After reading the order, I sense that the trial court judge missed his calling; he appears to have been born to serve as legal advisor to a military dictator.
If anyone in New Hampshire believes Justice McHugh has answered the wrong calling, a relevant form of document appears to be handy.
December 2, 2009, 6:24 pmCrunchy Frog says:
Baghdad Bob’s job was already taken.
December 2, 2009, 6:41 pmPersonFromPorlock says:
Well, we all have to remember that at the moment, unauthorised disclosure of a document is the gravest imaginable crime.
December 2, 2009, 6:53 pmtarheel says:
Just to clarify something Prof. Volokh wrote . . . NH case law recognizes a reporter’s privilege, but it is one of the few states in the country without a shield law.
I encourage everyone to read this opinion. Virtually no legal analysis. Almost totally bemused ramblings about how this really has nothing to do with the First Amendment at all but is simply about common courtesy.
December 2, 2009, 7:39 pmDan says:
The judge is clearly teeing up an issue so that the NHSC can make some pretty awesome law.
/optimist
December 2, 2009, 9:27 pmSoronel Haetir says:
I would think a website that expects people to post dubious documents would set up their server so as to provide as little identity information as possible.
I also thought that section 230 protected such outfits from takedown orders.
December 2, 2009, 10:28 pmRandall says:
The document taken down was sent by Mortgage Specialists to Lending companies to get approved as a Broker shop. It was never stated (except by Mortgage Specialists) that it was only supplied to the Banking Commission.
If anyone wants to see the document, just ask the lenders that Mortgage Specialists does business with… it’s in their files.
The NH AG’s office suggests the law as written was only to prevent the Banking Commission of making documents public… not the distribution by the provider or other parties.
The Banking Commissioner’s home is on the ‘Do-Not-Call’ list… Gill’s company called his home right after agreeing to pay a $400 Grand fine… Funny how an extra twenty-five grand fine can get tacked on, huh?
This suit was not about the Implode-O-Meter… it was Michael gill thinking he was going after Peter at the Banking Commission. Sorry Mikey… you missed.
December 3, 2009, 12:17 amrarb says:
There’s another good amicus brief in the case, by Paul Levy of Public Citizen:
http://www.citizen.org/documents/MortgageSpecialistsAmicus.pdf
http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=547
December 3, 2009, 8:40 amSeamus says:
Sure. Just like The New York Times, “in order to maintain the integrity of its publication,” ratted Dan Ellsberg out to the feds as the source of the Pentagon Papers.
December 3, 2009, 9:22 amTweets that mention The Volokh Conspiracy » Blog Archive » Injunction Ordering Web Site To Remove Improperly Leaked Document -- Topsy.com says:
[...] This post was mentioned on Twitter by overlawyered, Andy Sellars and Suffolk Media Law, Eugene Volokh. Eugene Volokh said: Injunction Ordering Web Site To Remove Improperly Leaked Document: I just ran across Mortgage Specialists, Inc… http://bit.ly/89lEL5 [...]
December 3, 2009, 9:23 amGuy says:
Um, someone help me out here. Doesn’t the takedown order constitute prior restraint? But the First Amendment isn’t implicated? Also the judge keeps saying that this is all about a reporter’s “responsibility” to disclose its sources, but then what’s the takedown order about? The judge seems to believe that no First Amendment right is even remotely implicated here.
December 3, 2009, 10:25 amAaronKrowne says:
We appreciate the coverage.
Readers can also view the Supreme Court oral hearings in this case here:
http://www.courts.nh.gov/pastsessions/November09/20090262va.asx
Thankfully, it doesn’t look good for MoSpec.
We are also accepting donations (sorely needed) – http://ml-implode.com/whydonate.html
We have two such frivolous lawsuits going on. Fun fun.
December 3, 2009, 12:03 pmDavid Schwartz says:
The biggest logic flaw in the ruling is that the law can only rationally apply if there’s some kind of evidence the copy actually provided to the agency is the one that was leaked. If I disclose some document to that agency and other people, the law cannot possibly affect what those other people can do with their copies. That’s utterly absurd.
December 4, 2009, 9:14 amJim says:
thanks very usefull information !
December 17, 2009, 3:38 pmGovernment coercion in the finance blogosphere - Credit Writedowns says:
[...] a few articles on the cases.New HampshireFunny name aside, free press at stake – Nashua TelegraphInjunction Ordering Web Site To Remove Improperly Leaked Document – The Volokh ConspiracyNew Hampshire Suit Challenges Mortgage Blogger’s Use of Anonymous [...]
January 3, 2010, 10:56 amJanuary 8 roundup says:
[...] Hampshire lawsuit over leak of documents to mortgage gadfly site raises First Amendment issues [Volokh, earlier here and [...]
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January 17, 2010, 1:39 amRandall Marquis says:
Well… I have a copy of this loan chart, and i’m wondering why it should not be re-published.
Thoughts?
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January 27, 2010, 11:30 amNew Hampshire Supreme Court applies free speech rights to online newsgathering « Andy on the Road says:
[...] Jean v. Massachusetts State Police. (Constitutional scholar Eugene Volokh of the Volokh Conspiracy took interest in the case too, and gave our brief some very kind [...]
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