Nevada judge orders online journalist to reveal sources, says not protected by shield law

A Nevada state court judge issued an order on March 4, 2019, to compel an online journalist to reveal his confidential sources, ruling that because he did not work for a print publication he did not qualify as a journalist—and was thus not covered by Nevada's shield law at the time.

Sam Toll founded the online news site the Storey Teller, covering Storey County, Nevada, in February 2017 and joined the state press association in August 2017. Toll was sued for defamation in December 2017 by Lance Gilman, a Storey County commissioner and owner of the Mustang Ranch, a legal brothel. In five stories, published between April and December 2017, Toll published claims that Gilman lives outside of Storey County, meaning he fails to meet the residency requirement to hold county office under Nevada law. The defamation suit demands Toll produces the sources of any information he procured before August 2017.

Nevada's shield law—considered to be one of the most robust in the nation—states that "[n]o reporter, former reporter or editorial employee of any newspaper, periodical or press association ... may be required to disclose the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation." But because this law was passed in 1969, some 14 years before the inception of the internet, it does not explicitly extend this protection to reporters for online publications.

In what has been criticized as an unduly narrow reading of the law, Judge James Wilson found that "[b]ecause Toll was not a reporter for a newspaper or press association before August of 2017 he was not covered by the news media privilege before August 2017, and therefore, the motion to compel must be granted as to any source of information obtained or procured by Toll before August of 2017."

Wilson ruled that because the Storey Teller is an online-only publication, it "is not a newspaper and, therefore the news media privilege is not available to Toll under the 'reporter of a newspaper' provision of [Nevada's shield law]."

In at least two other instances, Nevada courts have ruled that web-only publications were covered by the shield law, according to the Reno Gazette Journal. “My understanding is that it’s the first ruling of its kind and actually conflicts with other rulings,” Richard Karpel, executive director of the Nevada Press Association, told the newspaper.

Toll's lawyers filed a petition for writ of prohibition with the state Supreme Court on March 18. "While we respect Judge Wilson, we fundamentally disagree that an online journalist should be compelled to reveal their sources because they publish news articles in an online newspaper instead of traditional print newspaper," Luke Busby, one of Toll's attorneys, wrote in a statement. "Such a ruling undermines the protection of fundamental Constitutional principles of freedom of speech and of the press and stifles the free flow of information that is essential for any free society to exist."

On March 22, the Supreme Court stayed Gilman’s discovery request, pending review of Toll’s writ of prohibition. A deposition had been scheduled for March 25.

Other critics opined that Judge Wilson was splitting hairs in his order. "Unlike too many jobs in this country there is no such thing as a licensed journalist," newspaper columnist Thomas Mitchell wrote in the Elko Daily Free Press.

Toll told the U.S. Press Freedom Tracker that he would go to jail, if necessary, to protect his sources. But he worried that if this ruling stands, it could have a chilling effect on online media in Nevada.

"It would be potentially devastating for people who report on matters of public interest to not be able to protect whistleblowers," Toll said. "Do I relish going to jail? No. But for the people behind me, who currently have an online-only presence, I owe it to them to stand my ground."