NV: OT: Relying on Kyllo, a digital blog is covered by the newpaperman’s privilege in confidential sources

Off topic, but significant: A digital news blog is covered by the nearly 50-year-old Nevada statute on protecting news sources and under the anti-SLAPP statute. Relying on Kyllo, the court finds that new technology has to be recognized under existing law when it is logical to do so. Toll v. Wilson, 2019 Nev. LEXIS 74 (Dec. 5, 2019):

We are not required to make “a fortress out of the dictionary” in all instances. Haw. Carpenters’ Tr. Funds v. Aloe Dev. Corp., 63 Haw. 566, 633 P.2d 1106, 1111 (Haw. 1981) (quoting Markham v. Cabell, 326 U.S. 404, 409, 66 S. Ct. 193, 90 L. Ed. 165 (1945) (internal quotation marks omitted)). “Drafters of every era know that technological advances will proceed apace and that the rules they create will one day apply to all sorts of circumstances that they could not possibly envision ….” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 86 (2012). Take for instance the Fourth Amendment. When drafted, an unreasonable search was most readily associated with a “common-law trespass.” Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001). But in Kyllo, the United States Supreme Court found that thermal imaging—a technological advance the framers could not have logically contemplated—is in fact an unreasonable search without a warrant. Id. at 40. Therefore, the Supreme Court recognized a new form of an unreasonable search that was not explicitly included in the common application of the Fourth Amendment. Id. (concluding that recognizing thermal imaging as an unreasonable search is taking “the long view from the original meaning of the Fourth Amendment forward”).

The same principle applies here. NRS 49.275 has not been amended since 1975. While the drafters of NRS 49.275 knew what a newspaper was, they likely did not contemplate it taking digital form. But just because a newspaper can exist online, it does not mean it ceases to be a newspaper. To hold otherwise would be to create an absurd result in direct contradiction to the rules of statutory interpretation. In Kyllo, the court considered technological advancements and arrived at the conclusion that one can “search” in more than one way. See 533 U.S. at 31-33. We consider technological advancements as well and arrive at the conclusion that one can “print” in more than one way. While we decline to resolve whether or not a blog falls under the definition of a newspaper, we conclude that a blog should not be disqualified from the news shield statute under NRS 49.275 merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form.