New Hampshire State Constitutional Journalist’s Privilege Applies to Web Sites

So holds yesterday’s New Hampshire Supreme Court decision in Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries:

Although our cases discussing the newsgathering privilege have involved traditional news media, such as newspapers, we reject Mortgage Specialists’ contention that the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting. The trial court implicitly found that Implode is a “legitimate publisher of information” and a member of the press. The court further noted that it “has every reason to believe that [Implode] is a reputable entity desirous of only publishing legitimate information about the mortgage industry to various interested parties.” Moreover, we observe that:

Freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals…. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. The informative function asserted by representatives of the organized press … is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures.

Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (quotations and citations omitted). [Note that Branzburg used this point as an argument against recognizing a broad journalist’s privilege under the First Amendment, but the New Hampshire Supreme Court has since recognized such a privilege under the New Hampshire Constitution. -EV] The fact that Implode operates a website makes it no less a member of the press. In light of the trial court’s implicit findings, we conclude that Implode’s website serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for purposes of the newsgathering privilege.

The court also accepts the Dendrite test for evaluating when Internet service providers may be ordered to turn over the identities of anonymous Internet speakers, whom a plaintiff is trying to sue; and expresses broad hostility even to permanent injunctions of speech (broader than what I’ve seen from the U.S. Supreme Court and from some recent state and federal court decisions).