2009-262, The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc.

, of Washington, D.C. (Paul Alan Levy

brief), for Public Citizen, as amicus curiae. the brief), and Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the Public Citizen Litigation Group on

the Press, as amici curiae. brief), for Citizen Media Law Project and Reporters Committee for Freedom of Drummond Woodsum & MacMahon, of Portsmouth (Paul L. Apple on the

Chapman on the brief, and Mr. Eggleton orally), for the respondent. Orr & Reno, P.A., of Concord (Jeremy D. Eggleton and William L.

on the brief, and Mr. Walker orally), for the petitioner. Devine, Millimet & Branch, P.A., of Manchester (Alexander J. Walker & a. to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE MORTGAGE SPECIALISTS, INC.

No. 2009-262 editorial errors in order that corrections may be made before the opinion goes Rockingham Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Loan Chart. that Implode disclose both the identity of Brianbattersby and the source of the Chart and postings from its website. Mortgage Specialists further demanded

the website operated at www.ml-implode.com Mortgage Specialists requested that Implode immediately remove the Loan Loan Chart and any information or data contained therein, including on 2 the access or other dissemination of copies of and/or images of a 2007

Specialists and its president.

Department) and that Brianbattersby’s postings were false and defamatory. all investigative reports and examinations by the New Hampshire Banking distributing, linking to and/or otherwise providing any information for unlawful because it violated RSA 383:10-b (2006) (mandating confidentiality of

and/or entity that provided it with the 2007 Loan Chart; 2. [Implode] is ordered to immediately disclose the identity of the individual username “Brianbattersby” posted two comments regarding Mortgage under [Implode’s] ownership and control;

representatives, are enjoined from displaying, posting, publishing, site and create usernames to post publicly viewable comments about lenders. petitioned for injunctive relief, alleging that publication of the Loan Chart was 1. [Implode], and all of its agents, servants, employees, and or “Ailing/Watch List Lenders.” The website allows visitors who register on the The trial court granted the requested relief and ordered as follows:

(Loan Chart). In response to the article, an anonymous website visitor with the

After Mortgage Specialists became aware of the article and postings, it allegedly “at risk” companies and classifies them as either “Imploded Lenders”

document that purported to represent Mortgage Specialists’ 2007 loan figures against Mortgage Specialists. In this article, Implode posted a link to a administrative actions taken by the New Hampshire Banking Department In August 2008, Implode published an article that detailed

“The Mortgage Lender Implode-O-Meter.” On its website, Implode identifies various businesses in the mortgage industry on a ranking device that it calls mortgage lender. Implode operates a website, www.ml-implode.com, that ranks The record supports the following facts. Mortgage Specialists is a

Specialists). We vacate in part, reverse in part, and remand. injunctive relief to the petitioner, Mortgage Specialists, Inc. (Mortgage (Implode), appeals an order of the Superior Court (McHugh, J.) granting CONBOY, J. The respondent, Implode-Explode Heavy Industries, Inc. privilege in civil proceedings involving the press as a non-party. Id

p. 3 Constitution, and cite federal opinions for guidance only. State v. Ball

reporter could not be so ordered, we recognized the existence of a reporter’s

flow of information. constitutional provision. We first address Implode’s claims under the State disclosure of the Loan Chart source outweighs any potential harm to the free 3 unavailable to Implode. It also argues, in the alternative, that its right to

information utilized in preparing a series of articles. In holding that the

, 117 N.H. 386, 389 (1977), we considered

court did not analyze Mortgage Specialists’ disclosure requests under either New Hampshire Constitution protect a speaker’s right to anonymity. The trial organization, and therefore argues that this constitutional protection is the First Amendment to the Federal Constitution and Part I, Article 22 of the

whether a news reporter could be ordered to disclose the sources of In Opinion of the Justices

Loan Chart. Mortgage Specialists disputes that Implode is a news the identities of the Loan Chart source and Brianbattersby’s postings because of the New Hampshire Constitution protects the identity of the source of the Implode argues that the newsgathering privilege under Part I, Article 22

A. Loan Chart

and Brianbattersby’s postings. N.H. 226, 231-33 (1983).

number, and any other personal information [Implode] possesses. Implode first asserts that the trial court erred in ordering it to disclose

I. Disclosure of Sources and

from the Loan Chart source, and enjoining the republication of the Loan Chart ordering production of all documents concerning Mortgage Specialists received disclosure of the sources of the Loan Chart and Brianbattersby’s postings, On appeal, Implode argues that the trial court erred in ordering the

“Brianbattersby,” including his full name, address, email address, phone 5. [Implode] is ordered to immediately disclose the identity of

and October 7, 2008, false and defamatory postings by “Brianbattersby,” 4. [Implode] is ordered not to re-post or re-publish the October 4, 2008,

with the 2007 Loan Chart; petitioner that it received from the individual or entity that provided it 3. [Implode] is ordered to immediately produce all documents that concern disclosures. p. 4 and that these sources will be silenced if he is forced to make to the public, that he relies on confidential sources of information,

accurately assert that he is contributing to the flow of information

researchers, and dramatists. Almost any author may quite also performed by lecturers, political pollsters, novelists, academic function asserted by representatives of the organized press . . . is

affords a vehicle of information and opinion. The informative

newsgathering privilege. information to the public. Thus, Implode is a reporter for purposes of the

historic connotation comprehends every sort of publication which

Implode’s website serves an informative function and contributes to the flow of of the press. protection of contents. In light of the trial court’s implicit findings, we conclude that omitted). The fact that Implode operates a website makes it no less a member Branzburg v. Hayes confined to newspapers and periodicals. . . . The press in its, 408 U.S. 665, 704 (1972) (quotations and citations

Moreover, we observe that:

that Implode

surveyed believed protection of identity was more important than traditional news media, such as newspapers, see study showed that more than ninety percent of the reporters reporting. News gathering is an integral part of the process. One Freedom of the press is a fundamental personal right which is not

information about the mortgage industry to various interested parties.” [Implode] is a reputable entity desirous of only publishing legitimate as ‘press,’ . . . or whether libel actions would require disclosure.” Id press. The court further noted that it “has every reason to believe that

is a “legitimate publisher of information” and a member of the

entity nor engaged in investigative reporting. The trial court implicitly found privilege is inapplicable here because Implode is neither an established media N.H. at 960, we reject Mortgage Specialists’ contention that the newsgathering

Although our cases discussing the newsgathering privilege have involved people have access to an unimpeded and uncensored flow of acknowledged that the right of the press to gather news is “not unlimited.” Publishing Corp. v. Keene District Court, 117 N.H. 959, 961 (1977), we

scope of the privilege, whether it was absolute, who is a reporter, what qualifies Opinion of the Justices, 117 N.H. at 389. However, we did “not decide the

state, for effective self-government cannot succeed unless the Our constitution quite consciously ties a free press to a free

Keene Sentinel, 136 N.H. 121, 127 (1992). see Associated Press v. State of N.H., 153 N.H. 120, 128 (2005); Petition of p. 5 Amendment rights of a news organization against the rights of a litigant

First Circuit Court of Appeals’ balancing test, which weighs the First

interpreting Part I, Article 22 of our State Constitution, we are guided by the party to a defamation action. In the absence of binding precedent, in overcome the newsgathering privilege in a civil suit where the press is a non-

Hampshire Law. publication of the 2007 Loan Chart was prohibited under New not allege that [Implode] knew or should have known that the

we have not yet established a standard to determine whether a plaintiff can information sought as evidence would affect the verdict in his case”). However, balance of the probabilities, there is a reasonable possibility that the the information would not be irrelevant to his defense; and (3) that by a

prior to posting them on its website. [Mortgage Specialists] does

unsuccessfully to obtain the information by all reasonable alternatives; (2) that

with respect to either the story or the Brianbattersby comments [Implode] had some duty or responsibility to verify the information against the respondent. [Mortgage Specialists] does not claim that

confidential sources “only when he shows: (1) that he has attempted

privilege in a criminal case, see

a defendant-newspaper to disclose confidential sources in a libel action, see postings, and it asks for no sanctions or money damages as

defendant may overcome the newsgathering privilege and compel disclosure of

at 384-87, and whether a defendant can overcome the qualified newsgathering

We have set forth guidelines to determine whether a plaintiff can compel publishing of the unauthorized and allegedly defamatory website Accordingly, Downing does not require source disclosure in this case.

found,

sources are essential to a libel plaintiff’s case.” Id allowing the press to decline to reveal sources of information when those [Mortgage Specialists] does not “blame” [Implode] for the to disclose the source of allegedly defamatory information it published. Id

Specialists does not seek damages against Implode for libel. As the trial court defendant-newspaper acted with actual malice. Id. at 385. Here, Mortgage the fact that as a public official, the plaintiff was required to prove that the 385-87. Critical to our ultimate ruling that source disclosure was required was there is a genuine issue of fact regarding the falsity of the publication.” Id. at a “plaintiff must satisfy the trial court that he has evidence to establish that

384. In holding that it should, we also held that “there is no absolute privilege

issue was whether the defendant-newspaper in a libel case should be required N.H. 383 (1980), is controlling and disclosure is warranted. In Downing, the is considered a reporter, then Downing v. Monitor Publishing Co., Inc., 120 We also reject Mortgage Specialists’ alternative argument that if Implode portends on the opposite pan. p. 6 potential injury to the free flow of information that disclosure

those that reflect the objector’s interest in confidentiality and the

the movant’s need for the information on one pan of the scales and information. The court then must place those factors that relate to shifts to the objector to demonstrate the basis for withholding the

and relevance is not frivolous. Upon such a showing, the burden

, the First Circuit vacated the district court’s

balancing test, it “deliberately refrain[ed] from further categorizing with any movant must make a prima facie showing that his claim of need Although the Bruno & Stillman court ordered the district court to apply this In Re Cusumano, 162 F.3d 708, 716 (1 Cir. 1998) (citations omitted). st

effectiveness. Id confidentiality to preserve the journalist’s continued newsgathering exhaustion of other non-confidential sources, and the importance of there is a need for confidentiality between the journalist and the source, the sources. plaintiff's claim and (2) the information is not available from other showing specifically that (1) the information sought is critical to against the asserted need for the requested information.” Id “balance the potential harm to the free flow of information that might result Each party comes to this test holding a burden. Initially, the

Circuit further explained that:

. at 597-98. In elaborating upon its balancing test, the First

merely “a pretense for using discovery powers in a fishing expedition,” whether cited several factors for trial courts to consider, including whether the claim is threat to the continued free flow of information to the media by. at 596. The court

the plaintiff’s motion to compel discovery and instructed the district court to Amendment rights.” Id. at 595. It remanded the case for reconsideration of unlimited or unthinking allowance of such requests will impinge upon First for the discovery of journalistic materials to “be aware of the possibility that the Id. at 594. The First Circuit agreed and instructed courts faced with requests

disclosure is compelling enough to override the disruption or seeking disclosure establishes generally that the public interest in to refuse to disclose a reporter’s confidential source until the party

a conditional privilege parties for a defamation claim. Id. at 584. The newspaper-defendant asserted Id. at 584, 599, 593. The plaintiff requested such disclosure to ascertain the of confidential sources and information conveyed by them to The Boston Globe. decision granting the boat company-plaintiff’s motion to compel the disclosure In Bruno & Stillman

Newspaper Co., 633 F.2d 583, 595-98 (1 Cir. 1980). st seeking confidential information. See Bruno & Stillman, Inc. v. Globe p. 7 7

who has posted allegedly defamatory material on the Internet. when a plaintiff requests disclosure of the identity of an anonymous defendant

Independent News v. Brodie disclosure regarding pseudonyms or usernames in the context of In so doing, we recognize the complexity of the decision to order

of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio We take this opportunity to adopt a standard for trial courts to apply

Hampshire, 315 U.S. 568, 5 p. 7 72 (1942). the area of constitutionally protected speech . . . .”)); see Chaplinsky v. New has provided it with unauthorized or defamatory information.” v. Illinois, 343 U.S. 250, 266 (1952) (“Libelous utterances [are] not . . . within

. . . is not absolute and may be limited by defamation considerations.” Liberties Union, 521 U.S. 844, 8 p. 7 70 (1997). However, “the anonymity of speech protection extends to anonymous internet speech. See erred in failing to balance Brianbattersy’s First Amendment rights against Reno v. American Civil Constitutional Law Foundation, Inc. the source of the Brianbattersby’s postings. Implode argues that the trial court, 525 U.S. 182, 199-200 (1999). This Elections Comm’n, 514 U.S. 334, 342 (1995); see Buckley v. American

concerning omissions or additions to the content of a publication, is an aspect decision in any one case would be likely to have.” Id “[A]n author’s decision to remain anonymous, like other decisions and remand for further proceedings consistent with this opinion. balancing of interests. We therefore vacate the trial court’s disclosure order press does not give a publisher a right to protect the identity of someone who Brianbattersby ’s identity, the court found that “[t]he maintenance of a free Mortgage Specialists ’ need to discover his identity. In ordering disclosure of

Implode also challenges the trial court’s order mandating disclosure of

B. Brianbattersby’s Postings

awareness of First Amendment values and the precedential effect which

defies formula.” Bruno & Stillman applicability of the qualified newsgathering privilege or conducting any court ordered the disclosure of the Loan Chart source without analyzing the the identity of a potential defendant in a defamation action. Here, the trial petition seeking disclosure of an anonymous source from the press to ascertain We hold that this balancing test applies to a trial court’s review of a

fact and explanation of the decision would be appropriate.” Id. that “[g]iven the sensitivity of inquiry in this delicate area, detailed findings of

discretion of the trial judge has wide scope, it is a discretion informed by an

because the inquiry is “one that demands sensitivity, invites flexibility, and precision what inquiries should be made by the court or in what sequence” the fictitiously-named defendants a reasonable opportunity to file p. 8 application for an order of disclosure, and withhold action to afford

the anonymous posters that they are the subject of a subpoena or

anonymous, fictitiously-named defendants.

court should first require the plaintiff to undertake efforts to notify

recognizable claims based on the actionable conduct of the its proprietary interests and reputation through the assertion of right to speak anonymously, and the right of the plaintiff to protect

of being unmasked.”); Best Western Intern., Inc. v. Doe anonymous posters censor their online statements in response to the likelihood Internet posters by Internet service providers: assessing applications to compel disclosure of the identities of anonymous We hold that when such an application is made, the trial failed to establish harm resulting from the Internet comments. Id

based, in part, on the posting of statements on a website forum. Dendrite striking a balance between the well-established First Amendment The trial court must consider and decide those applications by

discourage debate on important issues of public concern as more and more

set forth the following analytical framework to be applied by trial courts in

Amendment rights.” (quotations omitted)). denial of Dendrite’s motion based upon the trial court’s finding that Dendrite wrongdoers from hiding behind an illusory shield of purported First 760. A three-judge panel of the Superior Court of New Jersey affirmed the Internet context. expedited discovery to ascertain the identity of the John Doe defendants. Id. at A.2d at 763. Dendrite appealed an order denying its request to conduct limited

corporation, Dendrite, sued several John Doe defendants for defamation, Number 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). The plaintiff A.2d at 457-61. The seminal case is Dendrite International, Inc. v. Doe standard only minimally protective of the anonymity of defendants, will anonymous Internet speakers. See Brodie, 966 A.2d at 447-57; Cahill, 884 Recently, several courts have enunciated rules regarding disclosure of

Internet should be able to seek appropriate redress by preventing the causes of actions for defamation should not be barred in the damages as a result of tortious or other actionable communications on the brought solely to unmask their identity. On the other, viable DGC, 2006 WL 2091695, at *1 (D. Ariz. July 25, 2006) anonymity and not to be subject to frivolous suits for defamation (“Those who suffer

457 (Del. 2005) (The “‘sue first, ask questions later’ approach, coupled with a Brodie, 966 A.2d at 449 (citations omitted); see Doe v. Cahill, 884 A.2d 451,

hand, posters have a First Amendment right to retain their the First Amendment and a defamation allegation. On the one p. 9 9

proceedings consistent with the Dendrite

reason for piercing the speaker’s anonymity. Dendrite rights at issue,” thus ensuring that a plaintiff alleging defamation has a valid test is the appropriate standard by which the identity of the unnamed defendant.

Accordingly, we join those courts which endorse the Dendrite to allow the plaintiff to properly proceed. reputation and a defendant’s right to exercise free speech anonymously. necessity for the disclosure of the anonymous defendant’s identity

accordingly vacate the trial court’s disclosure order and remand for further

speak anonymously requires the trial court to “balanc[e] . . . the equities and Best Western, 2006 WL 20 p. 9 91695, at *4. We hold that the qualified privilege to on a prima facie basis, prior to a court ordering the disclosure of Div. 2007); Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231, 241-48 (Ct. App. 2008); sufficient evidence supporting each element of its cause of action, 966 A.2d at 457; Mobilisa, Inc. v. Doe, 170 P.3d 712, 719-21 (Ariz. Ct. App. which relief can be granted . . . the plaintiff must produce test. See Brodie,

to strike the balance between a defamation plaintiff’s right to protect its against the strength of the prima facie case presented and the We conclude that the Dendrite

Id. at 760-61.

balancing of the equities and rights at issue. principle is a result based on a meaningful analysis and a proper undertaken and analyzed on a case-by-case basis. The guiding The application of these procedures and standards must be

can withstand a motion to dismiss for failure to state a claim upon

the defendant’s First Amendment right of anonymous free speech presented a prima facie cause of action, the court must balance Finally, assuming the court concludes that the plaintiff has poster that plaintiff alleges constitutes actionable speech. forth the exact statements purportedly made by each anonymous

discovery request to the anonymous user on the [ anonymous defendants. In addition to establishing that its action forth a prima facie cause of action against the fictitiously-named should be carefully reviewed to determine whether plaintiff has set The complaint and all information provided to the court

The court shall also require the plaintiff to identify and set

provider ’s] pertinent message board.

should include posting a message of notification of the identity and serve opposition to the application. These notification efforts p. 10 10 not constitute a forbidden intrusion on the field of free expression.’ ” Bose examination of the whole record’ in order to make sure that ‘the judgment does

after the fact. See administrative system that restricts speech, rather than merely punishing it

under the First Amendment, we have “an obligation to ‘make an independent “The court has interpreted . . . [First Amendment] guarantees to afford special reviewing prior restraint cases, the United States Supreme Court has stated: Definition of Prior Restraint, 52 Mercer L. Rev. p. 10 1087, 1087, 1096 (2001). In

Courts and commentators define prior restraint as a judicial order or

York Times Co. v. Sullivan, 376 U.S. 254, 284-86 (1964)). Amendment itself.” Procter & Gamble Co. v. Bankers Trust Co. Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984) (quoting New

fact.” enjoined.” (quotation omitted)). In considering the validity of such injunctions where there is at least some risk that constitutionally protected speech will be 20 p. 10 10) (“[A] higher bar than usual is set for those seeking injunctive relief . . . and remand for further proceedings consistent with this opinion. see McDermott v. Ampersand Publishing, LLC, 593 F.3d 950, 957 (9th Cir. light of the newsgathering privilege, we vacate the trial court’s production order speech.” Ford Motor Co. v. Lane, 67 F. Supp. 2d 745, 749 (E.D. Mich. 1999); newsgathering process. Because the trial court did not analyze this issue in standard can a court issue an injunction prohibiting publication of pure 227 (6th Cir. 1996). “Only if a plaintiff can meet this substantially higher of the First Amendment to the Federal Constitution., 78 F.3d 219, whether publication “threaten[s] an interest more fundamental than the First injunction constitutes an unlawful “prior restraint” on publication in violation involving alleged prior restraint of speech, the trial court must consider N.H. Dep’t of Envtl. Servs. v. Mottolo, 155 N.H. 57, 63 (2007). In cases of law, an unsustainable exercise of discretion, or clearly erroneous findings of Generally, “[w]e will uphold the issuance of an injunction absent an error

unlawful because they are false and defamatory. invasion of privacy. It further asserts that the Brianbattersby postings are the confidentiality requirements of RSA 383: p. 10 10-b (2006) and constitutes an from producing documents and information acquired through the counters that the publication of the Loan Chart is unlawful because it violates

republishing the Loan Chart and the two Brianbattersby postings because the Finally, Implode argues that the trial court erred in enjoining it from

III. Republication of the Loan Chart and Brianbattersby’s Postings

Chart source. Implode contends that the newsgathering privilege protects it documents concerning Mortgage Specialists that it received from the Loan Implode also argues that the trial court erred in ordering it to produce all

II. Production of Other Documents from the Loan Chart Source p. 11 11

irreversible sanction” which “freezes” speech “at least for the time.” Stuart ordinances.”). The danger of a prior restraint is that it “has an immediate and against prior restraint on speech. Id governmental interests could not overcome the established presumption , 283 U.S. 697, 403 national security, the Supreme Court held that even those threats to important protected under the First Amendment increases. Cf

these reasons, “[a]ny prior restraint on expression comes . . . with a heavy U.S. at 559; see Matter of Providence Journal Co., 820 F.2d at 1345-46. For government. Id, 427 the publication of obscene material, and to prevent the overthrow of the risks of censorship and discriminatory application than do general Health Center, Inc., 512 U.S. 753, 764 (1994) (“Injunctions . . . carry greater documents contained highly classified information that presumably threatened. Madsen v. Women’s takes the form of a court-issued injunction, the risk of infringing speech against prior restraint upon publication.” Id. at 1345. When a prior restraint free press under the First Amendment, the most significant is the restriction 1342, 1344 (1st Cir. 1986). “Of all the constitutional imperatives protecting a subjected to prior restraints.” Matter of Providence Journal Co., 820 F.2d It is a “hallowed First Amendment principle that the press shall not be

censorship.” Id sought to publish these top-secret documents during the Vietnam War and the Supreme Court. Id United States decision-making policy in Vietnam. Although the newspapers Times and The Washington Post from publishing a stolen classified study on U.S. 713, 714 (1971), the federal government sought to enjoin The New York “malicious, scandalous and defamatory” publications. Id In the Pentagon Papers case, New York Times Co. v. United States defendant, the trial court relied upon a state statute authorizing injunction of

. at 716.

issued only in rare and extraordinary circumstances, such as when necessary

. at 713. The Court explained that prior restraints may be

restraints.” Alexander v. United States statute violated the freedom of the press because it was the “essence of

state supreme court affirmed, and the publisher appealed to the United States ‘prior’ restraint on speech.”. at 701-02, 706. The

articles critical of local officials. In issuing a permanent injunction against the (1931), the defendant was the publisher of a newspaper containing anti-Semitic In the seminal prior restraint case, Near v. Minnesota

tolerable infringement on First Amendment rights.” Stuart, 427 U.S. at 559. restraints on speech and publication are the most serious and the least

orders that actually forbid speech activities — are classic examples of prior (1976). “Temporary restraining orders and permanent injunctions — i.e., court

particular information or commentary — orders that impose a ‘previous’ or protection against orders that prohibit the publication or broadcast of obtained lawfully by the publisher. See

p. 12 nature of the information itself, but, rather, upon whether the information was

held that the lawfulness of publishing information does not depend upon the and Mortgage Specialists makes no such assertion. The Supreme Court has , 532 U.S. 514, 535 (2001), the Court held that a trial court made no finding that Implode unlawfully obtained the Loan Chart

See

radio broadcaster who lawfully obtained a taped recording of a telephone Accordingly, In Bartnicki v. Vopper

third party). 714 (refusing to suppress publication of papers stolen from the Pentagon by a Corp. v. Cohn, 420 U.S. 469, 496-97 (1975); New York Times Co., 403 U.S. at measures.” CBS Inc. v. Davis of RSA 383:10-b and constitutes an “unlawful” invasion of privacy. Here, the be punished for publishing certain truthful information”); Cox Broadcasting reportage is both great and certain and cannot be mitigated by less intrusive “the ‘timidity and self-censorship’ which may result from allowing the media to ‘most extraordinary remedy’ only where the evil that would result from the, e.g., The Florida Star v. B.J.F., 491 U.S. 524, 535 (1989) (acknowledging information was confidential or initially obtained unlawfully by a third party. publication of information lawfully obtained by the publisher, even when the U.S. 97, 101-06 (1979). Thus, the Court has invalidated prior restraints on is nevertheless a restriction on what Implode may publish in the future. Smith v. Daily Mail Publishing Co., 443 will be effective and that no less extreme measures are available.”

unconstitutionality is virtually insurmountable.” because publication of the Loan Chart violates the confidentiality requirements We reject Mortgage Specialists’ argument that such restraint is justified constitutional interests, are concerned, [the Supreme Court has] imposed this restraint that “freezes” speech at least for a time.

we conclude that the injunction effectively functions as a prior

and postings, rather than their publication in the first instance, the injunction will result in damage to a near sacred right, but also that the prior restraint Although the injunction here prohibits republication of the Loan Chart

chambers) (quotations, citations, and brackets omitted).

“Even where questions of allegedly urgent national security, or competing issues, an omission making the invalidity of the order even more transparent”). (noting that “[t]he trial court failed to make a finding as to either of these

seeking a prior restraint against the press must show not only that publication Co., 820 F.2d at 1348. “As the Supreme Court made clear in Stuart, a party

communicate news and involves expression in the form of pure speech — “When . . . the prior restraint impinges upon the right of the press to

Austin v. Keefe, 402 U.S. 415, 419 (1971) (quotation omitted). presumption against its constitutional validity.” Organization for a Better p. 13 Id

even in circumstances where the disclosure threatens vital economic interests.”

, the district court denied Ford Motor Company’s restraint. p. 13 Id

trade secrets. Lane

. at 753-74. restraint.” p. 13 Id Amendment does not permit the prior restraint of speech by way of injunction, [the publisher.]” Davis. at 752-53. “Courts have steadfastly held that the First information based on the defect in a chain?” Id unlawful conduct in obtaining the documents could not justify a prior that Ford’s commercial interests in its trade secrets and the website’s allegedly or to a constitutional right sufficient to justify a prior restraint. Id plans” from anonymous internal sources at Ford. Id. at 746. The court held obtained “closely guard[ed] strategic, marketing, and product development

Similarly, in Lane

speech about a matter of public concern.” p. 13 Id. criminal prosecution, they are not appropriate bases for issuing a prior these might be appropriate lines of inquiry for a contempt proceeding or a [information to be published] was obtained through the ‘calculated misdeeds’ of the documents was misguided. Id. at 225. The court explained that “[w]hile unlawfully, may the government punish the ensuing publication of that court also found that the trial court’s inquiry into how the magazine obtained

information did not constitute a grave threat to a critical governmental interest In reversing, the Sixth Circuit held that the planned publication of the

F.3d at 225. The court determined that the magazine obtained the documents filed under seal by parties to a commercial litigation. Procter & Gamble Co., 78 prohibiting a magazine from disclosing information contained in documents illegal conduct does not suffice to remove the First Amendment shield from Circuit Court of Appeals reversed a district court’s permanent injunction

publication. “[T]he prior restraint doctrine [is not] inapplicable because the in question in a manner lawful in itself but from a source who has obtained it unlawfully by the publisher, courts have invalidated prior restraints on question, “Where the . . . publisher of information has obtained the information Even when confidential information has allegedly been obtained disclosure of illegally intercepted communications. The Court considered the publishing matters of public importance. p. 13 Id. at 534-35. petitioner’s privacy rights were outweighed by the respondent’s interest in because the publisher had played no part in the illegal interception, the

decision in the Pentagon Papers case, the Court concluded “that a stranger’s

violation of federal and state laws, could not be held liable for intentional conversation from an unknown third party, who had made the recording in p. 14 14

support [a prior restraint].” Keefe court. Designating the conduct as an invasion of privacy . . . is not sufficient to criticism of his business practices . . . warrants use of the injunctive power of a that publication but in a damages or criminal action after

support the claim that the interest of an individual in being free from public remedy, though not always totally effective, lies not in an injunction against

prior restraint.”); BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

misdeeds in the First Amendment context.”); Procter & Gamble Co. and remanded. ordinarily are the appropriate sanction for calculated defamation or other Vacated in part; reversed in part;

Chart and Brianbattersby postings. therefore reverse the trial court’s order prohibiting republication of the Loan

prior restraint. As the Supreme Court has recognized, “No prior decisions publisher is to print a libelous, defamatory, or injurious story, an appropriate

Matter of Providence Journal Co., 820 F.2d at 1345 (“If a

Near commercial self-interest simply does not qualify as grounds for imposing a postings more inflammatory than the anti-Semitic publications at issue in 225 (“The private litigants’ interest in protecting their vanity or their documents at issue in the Pentagon Papers case. Nor are the Loan Chart and, 78 F.3d at

1318 (“Subsequent civil or criminal proceedings, rather than prior restraints,

protecting its privacy and reputation do not justify the extraordinary remedy of . Accordingly, we conclude that Mortgage Specialists’ interests in

“confidential,” such information is certainly not more sensitive than the While it may be true that Mortgage Specialists’ loan information is