The Teller Gets It’s Day At The Supreme Court.
The Nevada Supreme Court heard oral arguments in Gilman v. Toll on September 5th. For those who have not been to the Nevada Supreme Court, the process is interesting. The Court allocated 30 minutes for the proceeding and they stick to it. Each side gets 15 minutes and as I learned, it is customary for the folks leading off to take 10 minutes and save 5 minutes for rebuttal after the other side used their 15 minutes. That’s how our hearing went down.
Body Of Evidence
My attorney Mr. John Marshall started off the process by providing a brief background and then addressed the relevant matters of fact. First off, he indicated our case was a clear and classic version of an “Anti-Slapp” case. A SLAPP (Strategic Lawsuit Against Public Participation) case is one where a public person or governmental body uses their elevated position and financial capacity to silence voices of opposition or criticism in the public arena. Mr. Marshall argued Mr. Gilman is using this lawsuit to chill our efforts to report on him and to punish me financially.
Secondly, Mr. Marshall noted that in his ruling, Judge Wilson stated that Mr. Gilman has not met the Prima Facia standard to prove defamation. The purpose of his ruling was to grant Mr. Gilman an opportunity for further discovery. This discovery would allow for a new deposition and would force me to disclose my confidential sources. The reason Judge Wilson gave for this ruling was that, although Wilson considers me to be a reporter, The Teller is not a printed newspaper.
To Be Or Not To Be a Newspaper? That Is The Question.
Chief Justice Gibbons asked Mr. Marshall if he agreed with the Amicus Brief filed by the Nevada Press Association that Nevada Revised Statute (NRS) should not be tethered to the past by classifying newspapers as a strictly ink on paper enterprise. Mr. Marshall (and I) concur. Chief Justice Gibbons then asked Mr. Marshall if he thought that bloggers who do not pursue journalism should enjoy protection from the Reporters Shield Law. Mr. Marshall said no.
The conversation turned to the definition of the NRS as to what periodicals or newspapers are. The dictionary’s definition of periodicals includes newspapers. Justice Elissa Cadish noted the Reporters Shield Law was crafted in 1969, before the internet was a thing, just as when the 4th amendment was written before cell phones were a thing, yet the 4th amendment still applies to the new technology. There was more discussion as to what a reporter was and how the digital age has transformed the dissemination of information. It seemed like everyone in the room except, presumably, Gilman’s attorney Gus Flangas agreed that The Teller is a modern-day equivalent of a newspaper.
Article One Section Nine
At this point, Justice Abbi Silver raised a fundamental question about Nevada’s Constitution. Article One Section 9 which states:
Liberty of speech and the press.Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the Jury; and if it shall appear to the Jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted or exonerated.
Justice Silver pointed out that Judge Wilson already deemed me a reporter and asked the rhetorical question, which I am paraphrasing, “If the Nevada Constitution protects the reporter, why are we even here?”
After Mr. Marshall agreed with Justice Silver and suggested that the case should have been dismissed. He then requested the remaining five minutes of his time be reserved to rebut Mr. Flangas.
Gilman Accuses Toll of Having an Agenda
Mr. Flangas then took the podium and began his arguments. He pointed out the fact The Teller’s mission statement is to “Educate and irritate the people who think run this place since forever” (I have since changed it up a bit). Mr. Flangas then went on to quote the deposition where I stated I started The Teller as a means of countering the information that Mr. Gilman, Roger Norman, and Kris Thompson were using in an effort to unseat Sheriff Antinoro. Flangas stated The Teller does not qualify as a newspaper because its genesis was a cause. As such it is a blog, and regardless, there is no constitutional protection for defamation.
Mr. Flangas went on to contend, as he did in his initial complaint, that The Teller exclusively prints articles that deride and defame Mr. Gilman. At this point, Justice Ron D. Parraguirre interrupted Mr. Flangas and seemed to tell him that none of the information was relevant to the reason we are all here: “There is a finding of fact that Mr. Toll is a reporter and as such Nevada Statute protects him.”
Mr. Flangas reminded the court that there is no statutory or constitutional protection for defamation. At this point, he made the courtroom wince (or at least me) when he made an uncomfortable analogy: “I can’t just print the statement you (Justice Parraguirre) were on Epstein Island without proof. Mr. Toll accused my client of committing perjury when filling out his paperwork to run for Storey County Commissioner.” Mr. Flangas went on to describe the many ways in which he felt I have criticized Commissioner Gilman in The Teller.
Newspapers Criticize. That’s What We Do.
The Justices reminded Mr. Flangas it is the job of a newspaper and of journalists to criticize government officials and their actions. The Justices then asked if in a hypothetical situation the Reno Gazette-Journal was an online-only (no printed component) newspaper, would their reporters be able to enjoy protection from revealing confidential sources by Nevada’s Reporter Shield Law. Mr. Flangas conceded they would.
Mr. Flangas raised a couple more points and reiterated others during his remaining time:
- The Nevada Press Association requires an entity to operate for a year, yet granted The Teller entry after 7 months
- It is the job of Nevada’s Legislature to update the law and provide remedy in this case, not the job of the Supreme Court
- Toll did very little actual “investigation” when he accused Gilman of perjury
- There are no constitutional protections from false facts
- Nevada’s Reporters Shield Law does not protect bloggers
- Judge Wilson said The Teller is not a newspaper
At the conclusion of Mr. Flangas’ time, Justice Silver made a point of reiterating the earlier remarks “Judge Wilson made a finding of fact at the top of page 5 of his ruling, Mr. Toll is a reporter.”
At that point, Mr. Marshall returned to the podium and concluded the proceeding by restating that Gilman has not met the standard of Prima Fascia for defamation. Further, I should not have to be subjected to further discovery because I am protected by the Reporter’s Shield Law. Because of these and other facts, Mr. Marshall requested the Justices rule favorably on our motion, and grant our motion to dismiss.
I felt encouraged by the proceeding. The questions raised by the Justices seemed to favor our position that I am a reporter and that The Teller is a newspaper. The body language, head nods, smiles, and stern looks, all seemed to reveal the notion that this was a case that would be decided in our favor. There were only two questions I can remember that might favor Gilman’s position. All the other questions either fleshed out our position or put Gilman’s position on its heels.
How will the Court rule? Good Question. It is law and the decision of the Court could surprise us. However, my attorneys and I feel confident the Court will rule favorably in our direction.
The Court sets no timetable to render their decision, so we have no idea how long their decision may take.
For those interested in hearing the entire proceeding, Click here:
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