Free Speech Advocates Ask N.H. Court To Vacate Injunction Against News Site

by Wendy Davis, Jun 23, 2009, 9:29 PM

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Last October, an online news site that covers the mortgage industry published a summary of loans held by the New Hampshire company The Mortgage Specialists.

The Mortgage Specialists responded by suing the publication. The company argued that the document that had been posted on its site's "implode-meter" section, ml-implode.com, was confidential and that its release hadn't been authorized. The Mortgage Specialists asked for an injunction ordering the site to take down the loan summary and directing the site to disclose how it obtained the document.

In March, New Hampshire judge Kenneth McHugh granted that request. The company behind the news site, Implode-Explode Heavy Industries, appealed to the Supreme Court of New Hampshire.

This week, some outside free speech advocates weighed in on the side of the Web site. The Reporters Committee for Freedom of the Press, Harvard Law School's Berkman Center for Internet & Society, and the Citizen Media Law Project have filed a friend-of-the-court brief arguing that the "implode-meter" is entitled to the same legal protections as news published by mainstream media companies.

The groups argue that the judges' order violates free speech principles, and also runs contrary to New Hampshire precedent that allows reporters to protect their sources. "ML-Implode provides vital information to the public about matters of utmost public concern. Like any traditional media outlet, its newsgathering activities and publication of articles are protected under the First Amendment," the advocates wrote in court documents.

The free speech groups argue that news media are entitled to publish any document that they come into possession of, provided that the news organization itself broke no laws in obtaining the papers. The injunction ordering the site to take down the document amounts to a "prior restraint" on publication; courts have said that such restraints on speech are often unconstitutional.

The groups also argue that McHugh had no legal basis to ban posting the loan summary. "Publishing truthful, non-classified information of public importance, voluntarily provided by a third-party, violates no New Hampshire law," they wrote.

McHugh also ruled that the site did not have "the right to protect the identity of someone who has provided it with unauthorized" information, but the groups argue that New Hampshire courts have held that journalists can protect the identity of their sources under some circumstances.

The groups are now asking the state appellate court to rule that online publications can protect confidential sources to the same extent as traditional news media. "The medium in which ML-Implode offers its news to the public is irrelevant," they write. "It is the function of an organization, not the medium of publication, which defines it as worthy of a journalist's privilege."

A lawyer for The Mortgage Specialists did not respond to Online Media Daily's request for comment.

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