Copyright Law

Berkman's Cyberlaw Clinic Submits Amicus Brief in Case Involving Prior Restraint and Reporter's Privilege

By David Ardia

Today, Harvard Law School's Cyberlaw Clinic submitted an amicus curiae brief urging the New Hampshire Supreme Court to defend the First Amendment rights of a website that covers news about the mortgage industry. The Cyberlaw Clinic, with the assistance of local counsel Paul Apple of Drummond Woodsum & MacMahon in Portsmouth, NH, filed the friend-of-the-court brief on behalf of the Citizen Media Law Project and the Reporters Committee for Freedom of the Press (RCFP) in the case of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. 

The lawsuit involves The Mortgage Lender Implode-O-Meter, a website covering news related to the mortgage industry, that posted a New Hampshire Banking Department document, obtained from an anonymous source.  That document described certain business practices of the Mortgage Specialists, Inc., a lending company under investigation in New Hampshire and Massachusetts.  After the mortgage company discovered the disclosure, it sued the website's operators, demanding that the document be removed and that the anonymous source be identified.  The Rockingham County Superior Court granted these requests, and the case is presently on appeal.  (For more on the case, see Sam Bayard's earlier post.)

In their brief, the amici focused on a series of cases in which courts permitted the publication of confidential or controversial documents - from the U.S. Supreme Court in the famed Pentagon Papers case through recent cases involving recorded cell phone conversations and videos of police searches posted online.  Amici also provided extensive caselaw support for the proposition that anonymous news sources should be protected.

The brief urged the New Hampshire Supreme Court to carefully consider the harm the Superior Court's ruling would have on freedom of the press, noting that publication of the document "is not unlawful in New Hampshire, and, even if it were, would nevertheless be fully protected speech under the First Amendment."  In addition, amici asked the Supreme Court to apply New Hampshire's qualified reporter's privilege to protect the identity of its source, noting "[i]t is the function of an organization, not the medium of publication, which defines it as worthy of a journalist's privilege."

Andy Sellars, a Cyberlaw Clinic summer intern and student at The George Washington University Law School in Washington, DC, drafted the brief alongside CMLP Assistant Director Sam Bayard, Cyberlaw Clinical Fellow Christopher Bavitz, and RCFP Legal Fellow Samantha Fredrickson.

You can read the Berkman Center's press release on the amicus filing here. 

Full post as published by Citizen Media Law Project on June 23, 2009 (boomark / email).