MEDIA ADVISORY: Heartland Institute Reacts to New Jersey Shield Law Ruling

June 07, 2011
Tammy Nash

The New Jersey Supreme Court Tuesday ruled that the state’s shield law for journalists does not apply to bloggers and those who leave comments on message boards. New Jersey-based software company Too Much Media in 2008 sued Washington state blogger Shellee Hale for defamation after she claimed the company had suffered a security breach. Too Much Media wanted Hale give up her sources of that information, and the court agreed that she must.

“We ... do not believe that the legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards,” the judges wrote in a 46-page opinion.

The following statements by legal and technology policy experts at The Heartland Institute may be used for attribution. For additional comments, refer to the contact information below.
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“Putting aside the wisdom of shield laws, they should not exist to protect only certain classes of Americans a court defines as ‘journalists.’ Freedom of the press is not truly free if the definition of ‘press’ is left up to the whim of a judge.

“Neither should it matter where journalism is practiced. The court decided that the comment section of a blog or a message board is not a place of journalism, but merely ‘forums for conversation.’ But what if a reporter from ABC News leaves a comment in the practice of journalism? Is that covered?

“What if, as increasingly happens today, a journalist reports breaking news on his Twitter feed – which, at a limit of just 140 characters, is much briefer than what could be posted on a message board? Does freedom of the press not exist there, either?

“The court’s attempt to define proper venues of protected journalistic practices in a constantly changing digital environment is a fool’s errand and a threat to Americans’ protections of free speech and freedom of the press.”

Jim Lakely
Co-Director, Center on the Digital Economy
The Heartland Institute
jlakely@heartland.org
312/377-4000
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“I am speaking as a former reporter for a mainstream newspaper who is now a lawyer. In my opinion, there should be a free market in information, and that means shield laws applicable to anyone are ill-advised.

“The correct response by a journalist to a demand to disclose his or her sources is the one made by Judith Miller, then reporting for The New York Times. She went to jail rather than reveal her source. That source, Scooter Libby, later released her from her promise of confidentiality, and his identity was then made public.

“I realize this calls for great personal sacrifice on the part of the journalist. But principles matter. Further, oftentimes, the identity of a ‘secret’ source is a poorly kept secret. Prosecutors who can figure it out without trying to jail a reporter will hesitate to do so if they know this measure will attract constant media attention.

“In addition, there are measures courts can take – such as sealing testimonial records – to protect the identity of a source if identified during litigation.

"Last, there is a practical problem, as the New Jersey court noted. Who is a mainstream journalist and who is not? Frankly, given the intellectual dishonesty of many so-called mainstream journalists, I am not in favor of shielding them. It’s too easy for them to report ‘unidentified sources say’ when they are actually quoting only themselves.”

Maureen Martin
Senior Fellow for Legal Affairs
The Heartland Institute
mmartin@heartland.org
920/ 295-6032
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“New Jersey’s shield law for journalists has been found by the state’s Supreme Court in Too Much Media v. Shellee Hale to be made of the flimsiest of gossamer and tissue paper, apparently fit for not much more than protecting investigative journalism in the rarefied world of yesteryears’ dead-tree and traditional broadcast media. Sympathies are extended to all modern-day Lois Lanes and Edward R. Murrows who dare reveal the results of their investigations in online chat rooms rather than a medium narrowly proscribed by Chief Justice Rabner and the other justices in this case.”

Bruce Edward Walker
Managing Editor, InfoTech & Telecom News
The Heartland Institute
bwalker@heartland.org
989/430-5557
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The Heartland Institute is a 27-year-old national nonprofit organization with offices in Chicago and Washington, DC. Its mission is to discover, develop, and promote free-market solutions to social and economic problems. For more information, visit our Web site at http://www.heartland.org or call 312/377-4000.