You may have seen the headlines Tuesday:

Bloggers are not journalists, says NJ court
Court denies bloggers journalists’ shield
NJ Supreme Court Can’t Comprehend That Everyone Can Be A Journalist
New Jersey court denies blogger shield protection

These headlines misrepresent the case and the decision. Unfortunately, most of the early news stories were also misleading.

Seattle-area blogger and licensed private investigator Shellee Hale criticized a New Jersey software company, Too Much Media LLC, on a porn industry bulletin board (not on a blog). The company sued for defamation (2010 Court Ruling, pdf). Hale claimed she was researching the company for her website, Pornafia, which launched in an “under construction” state; the site remains dormant, the trademark, abandoned.

On Tuesday, the New Jersey State Supreme Court ruled (pdf):

Although New Jersey’s Shield Law allows news reporters to protect the confidentiality of sources and information gathered through their work, online message boards are not similar to the types of news entities listed in the statute; therefore, defendant Shellee Hale was not entitled to claim the privilege in this defamation case that is grounded in comments she posted on an Internet message board.

[…] online message boards are little more than forums for discussion. They provide virtual, public forums for people to communicate with each other about topics of interest. In the context of news media, they can be compared to unfiltered, unscreened letters to the editor submitted for publication — or, in modern-day terms, unedited, unscreened comments posted by readers on NJ.com. They are not the functional equivalent of the types of news media outlets outlined in the Shield Law.

In other words, a message board is not a protected space like a newspaper or a news web site.

A person employed by a mainstream media company (a “journalist”) would not be protected on a message board, either. That’s because “message boards” don’t fall under the definition of “news media” (2A:84A-21a. Definitions):

“News media” means newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.

But that’s not the way CBS framed the story:

The latest chapter in the never-ending story – aka “journalist versus blogger – took a new turn on Tuesday when New Jersey’s Supreme Court ruled that bloggers and online posters don’t have the same protections for sources as mainstream journalists.

That was the spin provided by Hale’s lawyer:

The court “has taken a sharp turn against the nontraditional journalist and people writing on the web,” said Hale’s lawyer, Jeffrey Pollock. He said the decision relegates anyone writing for alternative media to a second class of protection.

Rather than relegating nontraditional journalists to second class citizens, the ruling overturned the Appellate Court decision that would have severely restricted the state shield law to “professional” journalists. Here’s The Reporters Committee for Freedom of the Press (which filed a friend-of-the-court brief in the case) noted:

While the court, in Too Much Media LLC v. Hale, found that the shield law does not apply to the defendant in the case, the decision threw out parts of an appellate court decision that would have required those seeking the law’s protections to show that they adhere to professional journalistic standards or have credentials from traditional media.

[…]

Although “the Shield Law does not limit its application to traditional news sources, it specifically requires that other means of disseminating news be ‘similar’ to newspapers, magazines, and the like,” the court said.

The decision is a victory for journalists because it rejected a lower court’s decision requiring individuals to show that they adhere to a number of traditional journalism practices before obtaining the law’s protections, said Bruce Rosen, a New Jersey media lawyer.

In a 1972 case Branzburg v. Hayes (which dealt with drug dealers), the U.S. Supreme Court ruled that the press does not have a Constitutional right of protection from revealing confidential information but that the government must have compelling interest in requesting the information.

Poynter has a list of shield laws by state.

KATHY GILL, Technology Policy Analyst
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Copyright 2011 The Moderate Voice
  • roro80

    Thanks for the article, Kathy. We certainly live in interesting times when the ideas of a dividing line between the media and the rest of us is blurring. It will be interesting to see how things play out.