In a June 30 decision, New Jersey Superior Court Judge Louis Locascio ruled that Shellee Hale, a blogger, private investigator, and "life coach," could not invoke New Jersey's journalist shield law to protect the identity of her sources in connection with postings she made to an Internet message board.
Hale sought protection for her sources under the shield law in the course of a defamation lawsuit brought against her by New Jersey-based Too Much Media, LLC, a software company that serves the online adult entertainment business. In the lawsuit, Too Much Media claimed that Hale defamed the company on Oprano.com, a forum for those in the adult entertainment industry -- self-described as the "Wall Street Journal of porn." According to the court's decision, Hale's forum posts accused Too Much Media and two company officers of intentionally mishandling a security breach and engaging in threatening behavior.
Judge Locascio's decision has gotten a lot of coverage, including an excellent and detailed article on Law.com, so I won't belabor the details. The court ruled that Hale was not entitled to the protection of New Jersey's shield law because she had no affiliation with a "legitimate" news publication and her message board postings bore no similarity to traditional forms of journalism. The opinion includes some sweeping statements showing quite a bit of disdain for at least some forms of online communication:
- Courts are now being faced with the task of evaluating a virtually limitless of people who claim to be "reporting" on issues, but who are, many times, doing little more than shouting from atop a digital soapbox. When New Jersey's legislature enacted the Shield Law, it could not have anticipated the instantaneity with which people now transmit information. (slip op. at 7)
- There is no fact-checking required, no editorial review, and so little accountability for the statements posted that it is virtually impossible to discern the author or source of the posts. To extend the newsperson's privilege to such posters would mean anyone with an email address, with no connection to any legitimate news publication, could post anything on the internet and hide behind the Shield Law's protections. Certainly, this was not the intention of the Legislature in passing the statute. (slip op. at 9).
It is tempting to read Judge Locascio's opinion broadly as saying that New Jersey's shield law categorically does not protect bloggers (e.g., here, here), or as drawing a hard-and-fast distinction between "people who are engaged in the true dissemination of information and those who are expressing opinions." But this is a mistake -- like any case, this opinion's precedential value is limited to its facts. As Jonathan Hart of Dow Lohnes told Law.com:
"The important thing to keep in mind about Judge Locascio's opinion is that it does not say that bloggers aren't entitled to the protections of New Jersey's shield law. It says only that this defendant on the peculiar facts before the court wasn't entitled to invoke the protections of the shield law."
And this case is full of peculiar facts. Significantly, the court discounted much of Hale's testimony -- including her claim to have published articles in newspapers and trade journals -- because she did not provide specific details about those publications and apparently lied in a court document submitted for a previous jurisdictional motion. Slip op. at 8-9. Because of these credibility problems, the court also disregarded Hale's contention that she made the message board postings with intent to disseminate news to the general public. Id. at 10. Without these evidentiary difficulties, the outcome may well have been different.
In addition, the court focused its analysis on Hale's message board posts, not her blog or her status as a blogger. This makes the court's expressed concern about opening the floodgates to those who "shout from atop a digital soapbox" more understandable and less worrisome to bloggers with a bona fide news/commentary agenda.
Finally, despite a good deal of loose language to the contrary, Judge Locascio himself seemed to recognize that the question of shield law protection can't be resolved solely by reference to status ("legitimate media" v. "blogger"). For instance, the court distinguished message board postings from recognized news sources through functional differences: "There is no fact-checking required, no editorial review, and so little accountability for the statements posted that it is virtually impossible to discern the author or source of the posts." Slip op. at 9.
Similarly, the court later faulted Hale for not contacting Too Much Media for comment on its side of the story before making her postings, stating that this oversight "certainly does not suggest the kind of journalistic objectivity and credibility that courts have found to qualify for the protections of the shield law." Id. at 10. This reasoning leaves open the possibility that someone adhering to good journalistic practices would be entitled to shield law protection, regardless of the platform.
You can monitor future developments in the case through our database entry, Too Much Media, LLC v. Hale.