A decision out of the New Hampshire Supreme Court yesterday on the journalist/source privilege was a victory for a website that is a mix of blogs and longer-format articles with anonymous commenting from the public. The site, The Mortgage Lender Implode-O-Meter, is owned and operated by a company that has the coolest name EVER:
IMPLODE-EXPLODE HEAVY INDUSTRIES, INC.
That is awesome. Seriously. If they issue stock certificates, I would buy shares just to be able to get the stock certificate to put up on my wall.
The case was The Mortgage Specialists vs. Implode-Explode Heavy Industries, Inc. (the owner of ML-Implode.com). It concerned items posted to MoSpec’s “Ailing/Watch List” entry
— the 2007 “Loan Chart” data for the company, and a post by username “Brianbattersby” accusing MoSpec and its President, Michael Gill, of habitual/systemic fraud.
Sam Bayard at Citizen Media Law Project provides analysis here
. The court held that the state’s qualified reporter’s privilege applies and Implode-O-Meter could use it to protect the identity of an anonymous source that leaked a loan document to the site. The court wrote:
[W]e reject Mortgage Specialists’ contention that the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting. … [W]e 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. … [quoting Branzburg v. Hayes, 408 U.S. 665 (1972)]“
The victory is, sadly, bittersweet for Implode-O-Meter. Since the privilege is a qualified one, the N.H. Supreme Court sent the case back to the trial court to engage in a balancing test. And that’s a problem, because Implode-O-Meter is now, thanks to lawsuits, out of money. Founder and publisher Aaron Krowne said
We are pleased with the court’s ruling on the fundamental questions of free speech and find little to complain about in the analysis. … We are, however, perplexed that the case was not completely dismissed. … Besides the overall frivolity of the original action, we are unclear what valid issues involving us remain in play … At any rate, since we have been rendered insolvent by the expense of this and similar frivolous SLAPP suits, we aren’t sure how we will be able to mount a continuing “defense” at all.