(CN) – When Sam Toll began documenting possible corruption of a county official in Storey County, Nevada, he could hardly have predicted he would wind up at the center of a legal battle that could determine how journalists are defined in the Silver State.
Toll runs an online blog called the Storey Teller, and it covers the political happenings of the third-least populous county in Nevada spanning the western flank of the Great Basin just east of Reno and Carson City.
When Toll ran a series of articles beginning in April 2017 about Storey County Commissioner Lance Gilman’s potential conflict of interests stemming from his roles as a government official and a businessman who benefits from some of the policies he was responsible for implementing, Gilman responded by suing Toll for defamation.
As part of that trial, Gilman and his attorneys have sought to uncover Toll’s sources, who remained confidential as Toll published stories well into December 2017.
Toll refused, citing Nevada’s shield law which gives journalists the right to refuse to reveal sources to state courts and other public bodies.
Shield laws, which have been passed in various forms in 40 states, are designed to protect the role of the press by granting reporters the right to refuse to testify in courts and before grand juries and legislative bodies regarding their sources for information obtained during the news gathering and dissemination process.
“Nevada has one of the strongest shield laws in the country,” said Patrick File, a media law professor at the University of Nevada, Reno. “It’s absolute. If the person in question qualifies as a reporter, former reporter or editor they can claim the shield and the judge doesn’t have to perform a balancing test. There is no step-by-step analysis. If you qualify you get the shield.”
But the question at the heart of the Toll case is who, in the age of digital news outlets, qualifies as a journalist.
Gilman and his lawyers say Toll formed his blog with the specific intent of prodding Storey County officials, and that such pointedly agenda-driven commentary does not belong in the same category as the more objective journalism practiced by traditional outlets.
Nevada First Judicial District Judge James Wilson sided with Gilman this week, holding that online-only news outlets that are not members of the Nevada Press Association do not qualify for shield-law protections. As a result, Wilson ordered Toll to divulge his sources.
And while Toll currently belongs to the Nevada Press Association, he did not in 2017 when the articles critical of Gilman were published. Therefore, Toll is not protected under the shield law, Gilman ruled.
Richard Karpel, executive director of the Nevada Press Association, said Toll and his sources should be afforded the same protections extended to any other journalist engaged in the news-gathering process in the Silver State.
“If they are practicing journalism they should be covered,” Karpel said.
Karpel believes the ruling came from a misguided belief that the Nevada Press Association is a reporting body itself, rather than a trade association. But Karpel also thinks the question of who qualifies as a journalist under the shield law is trickier than it might appear.
“It’s not always easy to decide who gets covered,” he said. “Plenty of people who write online aren’t journalists. But Sam Toll is.”
Karpel and others fret the ruling could lead to the exclusion of any journalist who works for online-only platforms.
Part of the problem, according to Paul Boyle, vice president of public policy for the News Media Alliance, is that states define who or what is covered in different ways.
“Some of these laws were written at a time when there was no contemplation of the internet or the digital distribution of media,” Boyle said, so online journalists aren’t specifically mentioned in many older shield laws.
A potential solution to the anachronistic issues raised by the Toll case is to pass laws that protect the act of reporting rather than categories of reporters, Boyle said.
“When laws are written to protect the act of gathering and reporting news there is no distinction about whether it comes from newspapers, television or digital,” he said.
However, Boyle is reluctant to advocate for reopening the legislative process in Nevada and other states, particularly given the possibility shield laws could be degraded rather than improved if revisited.
“These kinds of changes can come about through a correct interpretation of the law,” said File. “I just don’t think you can get in this situation where a nongovernmental organization like the Nevada Press Association gets to decide who is a journalist and who isn’t.”
Karpel of the Nevada Press Association agreed, saying the organization is not interested in being the final arbiter of who qualifies as a journalist.
File said the spirit, if not the letter, of Nevada’s shield law protects the process of journalism rather than applying exclusively to a narrow set of journalists who operate in the same manner as those who were working when the law was passed in 1969.
He pointed to two bench rulings in state court which applied the shield law in helping journalists keep sources confidential. One involved a documentary filmmaker and the other pertained to a reporter working for an online-only outlet.
Neither job description is specifically outlined in Nevada’s shield law statutes.
Both Karpel and File said they expect Toll and his lawyers to appeal the case. A phone call to Luke Busby, the Reno-based lawyer for Toll, was not returned by press time.