Judge gives online commenters First Amendment protection

A judge’s ruling in a pre-trial motion involving a Gaston County murder case affirms that First Amendment protection extends to those who make anonymous comments about stories on news websites.

The Star

July 29, 2010

By Kevin Ellis

Attorneys for Michael Mead had sought to force The Gaston Gazette to reveal information that could have been used to help reveal the identity of an anonymous commenter on the news organization’s website.

But Superior Court Judge Calvin Murphy ruled Tuesday to nullify the request, siding with The Gaston Gazette that such information remains protected by the First Amendment and state’s journalism shield laws.

This marked the first such ruling in North Carolina courts, said attorney John Bussian, who represents The Gaston Gazette.

“Judge Murphy’s decision recognizes the principle in North Carolina law that, absent unusual circumstances, the media can’t be forced to disclose information about how they manage comments on news reports posted to their websites,” Bussian said. “Courts in other states have protected free press rights this way for a while. But this is the first time a judge in North Carolina has done it. It’s a landmark ruling.”

Mead, 31, of York County, S.C., faces a death penalty trial for the July 16, 2008, killing of Lucy Johnson.

Johnson, a 31-year-old single mother of two, was found inside her burning house in the Country Meadow subdivision off Lowell-Bethesda Road between Cramerton and Gastonia. She had been fatally shot in the head before the start of the fire, according to an autopsy report.

Johnson, a nurse in Kings Mountain, was 15 weeks pregnant at the time of her death, and Mead has said he was the father of the unborn child.

News stories since Mead’s arrest in January 2009 and his subsequent court hearings generate dozens, and sometimes hundreds, of online comments after appearing on GastonGazette.com.

But attorneys for Mead were interested in the identity of one anonymous commenter who revealed information about a court date related to a bond revocation prosecutors sought in regard to a polygraph test.

The information the commenter disclosed had not been made public yet. The commenter also made a statement that Judge Eric Levinson was “itching” to return Mead to jail to await trial.

Levinson denied he had made any decision regarding Mead’s pre-trial release at a June hearing, stating if he thought Mead was a danger to the public he would already be in custody. Levinson made a preliminary ruling that The Gazette was covered by the state’s shield laws, but left the final decision up to Murphy because of a scheduling conflict, which will take him away from the case, he said.

Forcing The Gazette to reveal information leading to the identity of a commenter would have a “chilling effect” on anonymous online speech on The Gazette’s website, Bussian argued.

News organizations have a valid argument to protect themselves under the state’s shield laws as they attempt to generate public commentary about government officials, the trial and other events, Bussian argued.

Mead’s attorney, Lisa Dubs of Hickory, said she will not comment on this case outside court. At the June 28 hearing, Dubs argued that the speech of an anonymous commenter does not meet the definition of a journalist and therefore does not deserve protection. Another of Mead’s attorneys, Jason White, argued the commenting section of The Gazette’s website was more of a social network than a news gathering operation.

Mead remains free on a $650,000 bond while he awaits trial, which could take place in May, according to Tuesday’s court hearing.

Judge Murphy denied a request from prosecutors to revoke Mead’s bond.

A Sept. 27 hearing has been scheduled in the case to discuss a change of venue for the trial sought by defense attorneys, who argue pre-trial publicity would prevent a fair trial.