CMLP and Cyberlaw Clinic Amicus Brief in the News

July 23, 2009

In an editorial published earlier this week, the Nashua Telegraph highlighted an amicus brief (PDF) filed last month by Berkman’s Citizen Media Law Project  (CMLP) with the assistance of the Harvard Law School Cyberlaw Clinic.  The brief urged the New Hampshire Supreme Court to defend important First Amendment rights of a website that covers mortgage industry news.

The underlying case, The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., involves a mortgage industry website that obtained confidential documents from an anonymous source detailing the lending practices of a New Hampshire mortgage lending company.  The documents related to an investigation by the New Hampshire and Massachusetts banking departments.  The CMLP, along with the Reporter’s Committee for Freedom of the Press, argued in the brief that the Superior Court’s order preventing the publication of one of those documents violated the First Amendment, because it was a prior restraint on the press.  As described in the brief, 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.”  The brief also challenged the Superior Court’s order that the website’s source be revealed, explaining that the order was contrary to earlier New Hampshire cases and that it failed to apply the reporter’s privilege recognized in the state. 


The Nashua Telegraph’s editorial urged the New Hampshire Supreme Court to “more clearly see the danger of disregarding the longstanding New Hampshire precedent of reporter’s privilege needed for free speech and a free press in the Internet age.”  The Telegraph also noted the “frankly strange” assumption of the Superior Court that a news organization would seek to disclose its sources in order to maintain integrity, asking “since when has it been customary for a publisher – upon a request from business or government anxious to suppress a leak – to bury the information, then follow up by rolling over on its source and happily providing whatever information about that source the so-called ‘wronged party’ has requested?”  As the Telegraph observed, “both law and common sense would dictate” that the Supreme Court should overturn this dangerous precedent.


As set forth in an order dated June 30th (PDF), the New Hampshire Supreme Court formally accepted the amicus brief. 


In separate coverage, New Hampshire newspaper Foster’s Daily Democrat  noted that the “sanctity of people being able to anonymously, and freely, broadcast their views” hangs in the balance in this case.

Last updated

July 23, 2009