Injunction Ordering Web Site To Remove Improperly Leaked Document

I just ran across Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., a very interesting case heard last month by the New Hampshire Supreme Court. Despite its name, Implode-Explode Heavy Industries is a Web site that publishes stories about housing finance. Someone leaked it a document that Mortgage Specialists filed with the New Hampshire regulatory authorities — a document that, under New Hampshire law, was apparently supposed to be kept confidential — and Implode-Explode published it. Mortgage Specialists sued, and the judge ordered it to take down the document, take down some statements posted by an anonymous commenter (which the judge found were defamatory), and to identify the source of the document and of the comments.

This raises pretty serious First Amendment questions, as well as other questions. The Supreme Court held in Bartnicki v. Vopper that a speaker is entitled to publish speech on matters of public concern even when the speech consisted of a third party’s illegal interception of a phone conversation (so long as the speaker isn’t in cahoots with the illegal intercepter). I think the same should apply to illegally leaked information. There are also potentially interesting questions regarding journalists’ qualified privilege not to reveal confidential sources (New Hampshire law expressly recognizes such a privilege). There’s more on the subject, including the briefs, here. The Citizens Media Law Project / Reporters Committee for Freedom of the Press amicus brief, filed by Harvard Law School’s Berkman Center for Internet & Society, strikes me as very good.