New Hampshire defamation discovery dispute threatens source confidentiality protections

To protect the function of the press, First Amendment law makes clear that public figures cannot sue news organizations for defamation without first alleging facts that would show a reporter harbored real doubt about the truth of a report. The bare possibility that expensive, invasive discovery might surface support for a plaintiff’s claims down the road isn’t enough to justify forcing a publisher to open its books. But in New Hampshire, a judge recently ordered a journalist to allow the judge to review her notes and interviews with confidential sources after the court had already dismissed the plaintiff’s first effort to plead a viable defamation claim.

The unusual decision — recently highlighted in The New York Times — may have chilling effects on journalists in New Hampshire and could quietly erode press rights in the state, which does not have a shield statute.

Lauren Chooljian, the lead reporter named in the order, conducted a 15-month investigation into Eric Spofford, the founder of one of New Hampshire’s largest addiction treatment networks. In March 2022, New Hampshire Public Radio published her story detailing allegations of sexual harassment and assault against Spofford.

Spofford then filed a defamation lawsuit in New Hampshire state court, claiming that NHPR relied on sources that had reason to lie (an employee he had fired, for instance). Spofford also claimed that NHPR’s use of what he called a “clickbait title,” metatags that included terms like “sexual assault,” and Chooljian’s reliance on anonymous sources were evidence of the outlet’s disregard for the truth. Chooljian’s long-term focus on his organization in her reporting, he maintained, was evidence of an agenda targeting him.

The court dismissed the suit on the grounds that Spofford failed to allege that Chooljian and her team acted with “actual malice” — that is, that they had knowingly or recklessly published false information. The First Amendment requires public figures to make that showing in defamation claims by public figures to avoid chilling, among other things, investigative journalism. Spofford, the court found, was a limited-purpose public figure because of his national prominence in the ongoing public conversation on the opioid addiction crisis. Further, as the decision explained, the grievances alleged in Spofford’s complaint, were “irrelevant to whether NHPR had a subjective awareness of probable falsity in their reporting.”

That should have been the end of the case. But less than a month later, Spofford filed a motion for discovery to cure his complaint, asking the court to order Chooljian to relinquish complete and unredacted recordings of her interviews with six sources, as well as her notes and communications with them. As the court stated in its ruling, “Spofford’s discovery request is indeed atypical, especially in light of the case law indicating the Court is not required to grant such a request before dismissing this action.”

Still, the judge granted Spofford’s request in part, ordering an in camera review of Chooljian’s interview transcripts and NHPR internal communication with identifying information redacted. Even with a limited scope, this grant of discovery bypasses the requirement that a plaintiff make out a plausible basis for a claim — Spofford had alleged no facts suggesting he would find evidence of actual malice in discovery.

This ruling could encourage future plaintiffs to simply allege defamation without presenting any facts supporting a claim of actual malice and then seek invasive discovery in the hopes of discovering something to prop up a meritless case. We’ll be watching this case closely.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.