District judge dismisses defamation suit against Nevada digital reporter
A judge ruled to dismiss the defamation suit brought against Sam Toll, publisher of the online-only Storey Teller, on June 15, 2020.
The 2019 case against Toll pushed the Nevada Supreme Court to update the state’s more than 40-year-old shield law to include digital journalists in protections barring the disclosure of confidential sources.
Judge James Wilson found in his latest ruling that Lance Gilman, a Storey County commissioner and owner of the Mustang Ranch Brothel, had failed to demonstrate that Toll had published false information knowingly and with malice, elements of defamation.
“There is no credible evidence that Toll’s communications were not in good faith and in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern, and therefore [the suit] must be dismissed,” Wilson wrote in his decision.
The Storey Teller reported that Toll can apply to the court for reimbursement of reasonable attorney’s fees, and Gilman has until June 29 to show cause as to why he should not be ordered to pay Toll $10,000 in statutory damages.
Though he described this ruling as a victory, Toll wrote that he does not expect this to be the last he hears from Gilman.
“Mr. Gilman is on the record saying he will appeal if he loses, so I know we’re not done,” Toll wrote.
Nevada state judge says online publisher can’t be further compelled for confidential sources
The latest ruling in a case that has redefined the state of Nevada’s shield law allows a digital journalist to protect his confidential sources.
In December 2019, the Nevada Supreme Court updated the state’s 1975 shield law, finding that it also applies to online-only publications. It then remanded, or sent back to a lower court for a rehearing, the defamation case brought by Lance Gilman against Sam Toll, publisher of the online-only Storey Teller.
On March 19, 2020, Judge James Wilson issued an “order after remand,” denying plaintiff Gilman’s motion to compel further discovery around Toll’s confidential sources.
Toll told the U.S. Press Freedom Tracker in an email that the rulings were humbling.
“To have Nevada’s Supreme Court confirm I am a reporter and Judge Wilson define my site as a modern day equivalent of a newspaper is fantastic,” he said.
He admits, however, that the case has been both costly and frustrating. “My savings have been exhausted, and my resolve has been tested,” Toll said.
While Judge Wilson denied Gilman’s motion to compel further deposition of Toll or his witnesses, he granted another chance to prove actual malice. Both Toll and plaintiff Gilman have until May 3 to file briefs with the state court.
After that, Toll said, he is cautiously optimistic.
“We expect to win, we expect Gilman to appeal and lose, and we expect justice to prevail,” he said.
Supreme Court of Nevada rules that shield law applies to digital media, too
Nevada’s shield law protecting journalists from revealing sources also applies to online media, the state’s supreme court ruled unanimously on Dec. 5, 2019.
Sam Toll, the online blogger whose refusal to turn over source material made its way to the state’s highest court, wrote on his site that he was encouraged by the ruling: “The ruling confirms what I believe everyone takes for granted in today’s digital age; online journalists are real journalists and deserve the protection of Reporter Shield Laws.”
The court said the decision, however, was an update of the state’s 1975 shield laws and didn’t apply immediately to Toll’s case, the Las Vegas Review Journal reported. That defamation case was sent back to the lower court for a rehearing.
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."