NJ Supreme Court Reviews Journalism Shield Laws in Pornographic Blogger Case
Attention Bloggers! In a case that could have far-reaching effects on online commentary in the media, the NJ Supreme Court heard arguments today on whether a blogger from Washington state is protected by New Jersey’s so-called shield law concerning her writings about out Freehold-based Too Much Media Inc. ("TMM"), a maker of software used by many adult entertainment websites to track sales.
According to the court filings, the blogger Shellee Hale, a former Microsoft employee and a private investigator, maintains she was working as a journalist in 2008 when she set out to investigate organized crime infiltration of the online porn industry. Hale created a website under the domain name Pornafia.com (which now forwards to shellehale.com) to report her findings, and even planned to publish a book on the subject.
Hale chose not to publish any articles on her website (Pornafia.com) because she claims TMM principals threatened her. However, she posted comments on an online bulletin board (Oprano.com) accusing TMM of engaging in fraudulent practices and threatening the life of someone who divulged details about it.
TMM, based in Manalapan, New Jersey and operating a website under the domain toomuchmedia.com, filed a defamation lawsuit against Hale in New Jersey in 2008. When TMM pressed Hale to reveal the identity of her confidential source, Hale invoked New Jersey's shield law to avoid identifying the person who was threatened and another source who first told her of the threats.
[A] person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasilegal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere
a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and
b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.
The term "news media" is defined as "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." N.J.S.A. 2A:84A-21a.
Although Hale admits she was not working for a traditional news organization when she made the online postings in 2008, she insists she is a journalist and should not have to reveal her source. The trial court rejected Hale's argument and characterized her comments as the rants of "a private person with unexplained motives for her postings."
A New Jersey appeals court agreed, writing that Hale's postings on the website Oprano.com, which bills itself as "The Wall Street Journal of the Porn Industry," "were not made in the context of any recognized aspect of the news process nor, we conclude, by a 'newsperson' in the course of her professional activities." The New Jersey Supreme Court agreed to hear the case on a further appeal.
According to various news reports, much of the nearly two-hour oral argument in Trenton revolved around the shield law statute (N.J.S.A. 2A:84A-21) enacted in 1977, which the justices and attorneys agreed is outdated and does not address new forms of media on the Internet. The Justices and attorneys also agreed that New Jersey's shield law is one of the broadest in the country in its protection of journalists' sources.
But the justices appeared reserved about carving out a new definition of a journalist. "We have to be clear what we’re deciding here," Justice Barry Albin commented. He said the issue before the courts is ‘‘who the shield law pertains to — that’s all.’’ Referring to the most popular social networking site Facebook, Justice Albin questioned whether a person posting reckless writings on Facebook is protected if he first announces he is a reporter conducting an investigation. ‘‘Do you really think the legislation intended the shield law to protect everyone?’’ Justice Albin asked.
Stay tuned for the outcome of this most important decision by the New Jersey Supreme Court. If this case demonstrates anything, our New Jersey legislature has some homework to do in updating some of New Jersey's antiquated laws which predate the explosion of the Internet as a medium for anyone to publish and disseminate their thoughts, ideas, and opinions.
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