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Monday, December 21, 2009

Funny name aside, free press at stake

Telegraph Editorial

The lawsuit may not have national importance or as catchy a name as the famous “Pentagon Papers” case, but a forthcoming decision from the New Hampshire Supreme Court could nonetheless have a dangerous chilling effect on both mainstream and independent journalism in the state.

The case, The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., was heard by the state’s top court Nov. 4 and a ruling is expected by early next year. The dispute centers on a Las Vegas-based Web site, Mortgage Lender Implode-O-Meter, a mortgage-industry watchdog that posts news about the housing finance crisis.

Last fall, the site posted a story about a New Hampshire company, The Mortgage Specialists Inc., that at the time was being investigated by banking officials for a number of alleged violations, including forging signatures, destroying documents and unfair or deceptive business practices. As a result of the investigations, MSI was fined $725,000 and required to open its old loan files for further review by state regulators.

Along with its November 2008 story, Implode-O-Meter staff anonymously received and posted a confidential loan chart for 2007 that MSI had prepared for the New Hampshire Banking Department. Around the same time, a writer using the pseudonym “Brianbattersby” posted a comment on the site, accusing MSI President Michael Gill of past fraud.

MSI asked the site to take down the document and comment, which it did. But the publisher, Implode-Explode Heavy Industries, refused to identify the person who leaked the chart or provide the real identity of the commenter. It also refused to promise that it wouldn’t repost the chart in the future.

MSI sued Implode-Explode in Rockingham County Superior Court, and Judge Kenneth McHugh ordered the Web publisher to reveal the source of the leaked documents and the identity of “Brianbattersby.” Further, McHugh prohibited Implode-Explode from “displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies and/or images of the 2007 Loan Chart and any information or data contained therein.”

McHugh’s decision attempted to downplay the potential conflict with First Amendment protections, claiming that the suit found no fault with Implode-Explode, but simply allowed MSI to pursue further action against the anonymous source(s).

But, according to the judge’s decision: “The maintenance of a free press does not give a publisher the right to protect the identity of someone who has provided it with unauthorized or defamatory information.”

The ruling, in other words, ordered a news organization to reveal a confidential source, unmask the identity of a potentially innocent commenter and comply with an order of prior restraint on publication. But it somehow magically did so without violating the First Amendment.

No journalist in the country can or would agree to those terms. In fact, they fly directly in the face of the U.S. Constitution, federal statute and New Hampshire case law. It is as if The New York Times, had the case occurred in 2009 not 1971, was forced to remove the Pentagon Papers from its Web site and told to “pretend it never happened.”

For better or worse, New Hampshire is one of 12 states without a reporter’s shield law that would protect journalists from being forced to disclose anonymous sources. A federal shield law is currently being debated in Congress, but its outcome remains uncertain.

Granite State journalists are not totally without protection, however.

The state constitution explicitly states that press freedom is “essential to the security of freedom in a state” and therefore should “be inviolably preserved.” That statement has led state courts, including the state Supreme Court, to provide a qualified protection for news gathering purposes.

That qualified protection implies that journalists have the right to protect their sources, absent a legal determination that the identity of those sources is necessary to prosecute a criminal, or in some cases, civil proceeding. None of those determination were made in the Superior Court decision, a fact much noted by the Supreme Court justices during oral arguments.

Implode-Explode Heavy Industries might be a name difficult to imbue with journalistic tradition and integrity. The New York Times it is not. But journalism is journalism, and the Implode-O-Meter has gained a degree of national attention and respect for its coverage of the housing industry meltdown.

When the Supreme Court makes its ruling, it should – and hopefully will – ignore the funny name and the “.com” that follows it. A loss for Implode-Explode Heavy Industries would be a damaging blow to every journalist in the state, big or small, online or off.