Toll v. Wilson (Nev. Supreme Ct. – Dec. 5, 2019)

Almost fifty years ago, the Nevada Legislature passed the news shield statute, NRS 49.275. The current version of the statute protects journalists who are associated with newspapers, periodicals, press associations, and radio and television programs from mandatory disclosure of confidential sources. Since the passage of the statute, the news media has undergone immense changes. Previously, most news outlets disseminated news via physically printed newspapers and magazines or by radio and television broadcasts. Now, in addition to these sources, independent bloggers disseminate news through personal websites. At issue is whether digital media falls within the protections of Nevada’s news shield statute.

Toll runs an online blog that reports on current events in Virginia City, Nevada. Initially, this blog, thestoreyteller.online (The Storey Teller), focused on the then-pending recall election of Sheriff Gerald Antinoro. Toll expressed a counter-narrative to local news sources, which he felt were publishing stories that were critical of Antinoro. After the recall election, Toll continued publishing The Storey Teller. In addition to other current events, Toll took an interest in Storey County Commissioner Lance Gilman. Toll wrote several articles that were critical of Gilman and posted them on The Storey Teller. Specifically, Toll wrote and posted articles that alleged Gilman did not live in Storey County. In response to these articles, Gilman filed suit, alleging defamation per se against Toll.

After some litigation, Toll filed a special motion to dismiss Gilman’s action under the anti-SLAPP statute, NRS 41.660, together with a sworn declaration, claiming that his statements constituted a good faith communication in furtherance of the right to free speech on an issue of public concern. Gilman filed an opposition to this motion together with an affidavit arguing that even if the statements were good faith communications, the action should not be dismissed because he, in turn, could demonstrate with prima facie evidence a probability of prevailing on his defamation claim. The district court held that there was a potentially viable claim under the anti-SLAPP statute. According to the court, Gilman made a prima facie case for a probability of success on the merits as to the falsity of the residency statements and their damaging nature, but he failed to make such a showing for actual malice, which is required to prevail on a defamation claim against a public figure. The district court granted Gilma’s motion for limited discovery on whether Toll had actual malice when making these statements. The discovery was limited to information that would help discern whether Toll knew that the statements involving Gilman’s residency were false or whether he acted with a high degree of awareness that they were likely false.

Once the limited discovery began, Gilman deposed Toll. During the course of the deposition, Gilman asked, among other things, why Toll believed that Gilman did not live in Storey County. Toll answered that he looked into the zoning of the Mustang Ranch, where Gilman claims to live, and determined that Gilman living there would violate zoning laws. Further, Toll stated that Gilman living in a trailer behind the Mustang Ranch was illogical, given Gilman’s wealth. Toll said he asked people whether Gilman lived on the Mustang Ranch property and they told him he did not. Toll stated his sources told him that Gilman would leave the Mustang Ranch and head to Reno every night at 8:00 p.m. Another source allegedly told Toll that Gilman kept his possessions at a different property, where he truly lives. When Gilman asked who these sources were, Toll invoked the news shield statute under NRS 49.275 and refused to provide the identity of his sources. The deposition abruptly ended shortly thereafter.

Gilman filed a motion to compel Toll to reveal his sources with the district court, arguing that the news shield statute does not apply to bloggers. The district court agreed and granted Gilman’s motion to compel. The district court held while Toll is a reporter, he did not belong to a press association at the time of his comments. The court further held that Toll’s blog did not qualify as a newspaper because it was not printed in physical form and therefore the news shield statute did not afford him any protection. Toll filed a petition for a writ of prohibition or mandamus, challenging that decision as well as the order allowing limited discovery.

The district court held that Toll was not protected by NRS 49.275 because he was not associated with a newspaper, periodical, press association, or radio or television station when he made the alleged defamatory statements on his blog. In particular, the district court relied on the notion that because Toll’s blog was not physically printed, it could not be considered a newspaper.

NRS 49.275 reads, in relevant part, as follows:

No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation . . . .

The Nevada Supreme Court explained that in trying to ascertain the plain meaning of the statute, the district court attempted to define each word’s literal meaning. The first relevant term in this statute is “reporter.” The district court found that Toll was a reporter under this statute. The district court defined reporter as “one that reports; one who reports news events; a commentator.” Reporter, Webster’s Third New Int’l Dictionary (2002). Toll reports various public events, opinions, and current news in Virginia City. The Court determined that this qualified him as a reporter.

The Court noted that the statute also requires that, in order to be protected, the reporter must work for a “newspaper.” Because newspaper was not defined by NRS 49.275, the district court relied on the definition of newspaper in other statutes as well as in a dictionary. When examining statutory definitions, the district court found that in order to constitute a newspaper, the media source must be printed. This was consistent with the dictionary definition of newspaper the district court used, which also stated a newspaper is printed. Therefore, because Toll’s blog was not printed in physical form, the court ruled it could not be a newspaper. However, if the district court had pursued the literal meaning of print further, it would have found that it could apply to digital media as well as physical form. In one dictionary, print is defined as “to make a copy of by impressing paper against an inked printing surface.” Print, Webster’s Third New Int’l Dictionary (2002). In another dictionary, print is defined as “to display on a surface (such as a computer screen) for viewing.” Print, Merriam-Webster’s Collegiate Dictionary (11th ed. 2020). Thus, the Court determined that because print possesses two definitions that are equally applicable to this statute, the district court erred in limiting itself to only one.

The Court explained that it is not required to make “a fortress out of the dictionary” in all instances. Haw. Carpenters’ Tr. Funds v. Aloe Dev. Corp., 633 P.2d 1106, 1111 (Haw. 1981). “Drafters of every era know that technological advances will proceed apace and that the rules they create will one day apply to all sorts of circumstances that they could not possibly envision . . . .” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 86 (2012). The Court noted, for example, that when the Fourth Amendment was drafted, an unreasonable search was most readily associated with a common-law trespass. Kyllo v. United States, 533 U.S. 27, 31 (2001). However, in Kyllo, the United States Supreme Court found that thermal imaging—a technological advance the framers could not have logically contemplated—was in fact an unreasonable search without a warrant. Therefore, the Supreme Court recognized a new form of an unreasonable search that was not explicitly included in the common application of the Fourth Amendment.

The Court further explained that the same principle applied to this case. NRS 49.275 had not been amended since 1975. While the drafters of NRS 49.275 knew what a newspaper was, they likely did not contemplate it taking digital form. The Court noted that just because a newspaper can exist online, it did not mean it ceases to be a newspaper. The Court believed that to hold otherwise would create an absurd result in direct contradiction to the rules of statutory interpretation. In Kyllo, the U.S. Supreme Court considered technological advancements and arrived at the conclusion that one can search in more than one way. The Court explained that it considered technological advancements as well and arrived at the conclusion that one can print in more than one way. While the Court declined to resolve whether a blog fell under the definition of a newspaper, it concluded that a blog should not be disqualified from the news shield statute under NRS 49.275 merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form. Therefore, the Court concluded that the district court erred by granting Gilman’s motion to compel.

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