Nearly one year after a New Jersey Appeals Court ruled a blogger cannot be protected under journalism shield laws, the defendant’s case was heard by the state’s Supreme Court.
A New Jersey appellate court ruled in April 2010 that blogger Shellee Hale is not a “real” journalist, but merely a blogger. Hale’s case subsequently was argued before the New Jersey Supreme Court on February 8. Hale’s attorney, Jeff Pollock, Fox Rothschild LLP, says he doesn’t expect a final ruling until June or July of this year.
Hale, a resident of Washington state, was sued by New Jersey-based software company Too Much Media after posting a blog comment asserting the company had experienced a security breach. Citing anonymous sources, Hale wrote Too Much Media’s customer information – including credit card details – had been exposed. The company sued Hale for defamation and sought the identity of her source.
‘Engaged in Newsgathering’
Pollock explained that his client was investigating the pornography industry for either a series of articles or a book. “The stated purpose can change,” he said. “You can still have the benefit of the shield law. She was still in engaged in newsgathering, and had stated that fact publicly.”
Hale’s investigative work led her to Too Much Media, a provider of software employed by Internet pornography sites. Hale commented on the Too Much Media security breach on Oprano.com, a site dedicated to reporting on the business aspects of the online adult entertainment industry.
“Shellee wanted to report on how the porn industry is run, which is how she found out that Too Much Media had been hacked and its customers credit card information exposed as well as how much time and money customers spent on each site,” said Pollock. “Too Much Media denied it had been hacked, but still wanted her to divulge the identity of her confidential source.”
Pollock adds that Hale’s work included interviews with the Washington attorney general and senators, as well as collecting information from news network MSNBC and newspapers the Los Angeles Times and the New York Times. “She should pass any public interest test as to whether she’s a journalist,” he said.
“The porn industry is very closed,” Pollock said, “and she actually went to sites, trade shows, wrote and participated on Oprano, which is known as the Wall Street Journal of the porn industry, to discuss how the pornography business is operated.”
‘Contempt for Bloggers’
Hale lost in trial court against Too Much Media, and again last April in Appeals Court.
New Jersey Superior Court Appellate Judge Anthony J. Parrillo ruled against Hale, arguing that, because her work appeared as a comment on a Web site, she could not seek protection under the state’s journalism shield laws.
In his opinion, Parrillo stated Hale “exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity.” Parrillo also wrote Hale had not “demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest.”
Jim Lakely, director of the Center on the Digital Economy at The Heartland Institute, which also publishes Infotech & Telecom News, says Parrillo erred. “This decision impacts all who share their views on the Internet, and Parrillo’s decision drips with contempt for mere ‘bloggers.'”
Lakely continued: “It was just bloggers who fact-checked the bogus story that got ‘real journalism’ titan Dan Rather fired from CBS. In fact, bloggers have lately done a lot of excellent and valuable public-service journalism.”
Edward J. Lopez, associate professor of law and economics at San Jose University and a visiting scholar at the Social Philosophy and Policy Center at Bowling Green State University agrees with Lakely. “The Court touted in-house fact checking and editorial control, but these do an arguably weaker job regulating news content than does the open marketplace of ideas, which unfolds chiefly in the blogosphere,” Lopez said. “If I say something incorrect, or if I make a weak argument, other bloggers with a different point-of-view will be all over me in a heartbeat.”
‘Investigative Journalism Hit Hardest’
While acknowledging “not everyone on Facebook or Twitter is a journalist,” Pollock argues “many traditional forms of journalistic criteria are satisfied on the Web.”
Lopez adds: “The court wants to restrict legal protections based on professional status, which puts the courts in the difficult position of drawing fixed lines in a dynamic world and will therefore never hold up.”
If the ruling stands the law would set a strong incentive for sources who want to remain anonymous to deal only with credentialed, institutionalized journalists, according to Lopez. “This would hit investigative journalism the hardest since it depends more heavily on anonymous sources,” he said.
“As investigative journalism continues its march out of news companies and into other organizations, like public policy think tanks, this ruling would necessarily harm the efforts of the new investigative journalists,” Lopez said.
“It is quite disturbing to see a high-level state judge not only putting ultimate faith in an ‘institutional journalism’ class that has time and again failed in its mission to report the unvarnished truth,” said Lakely. “It is worse that this judicial panel decided on its own who is a ‘real’ journalist worthy of First Amendment protections.”
Pollock remains optimistic about his client’s chances: “The trial court and appellate court are wrong,” he said. “I’m convinced the Supreme Court will reverse the decision.”
Bruce Edward Walker ([email protected]) is managing editor of Infotech & Telecom News.
On the Internet
“Too Much Media, LLC. v. Shellee Hale, Superior Court, Appellate Division – Published Opinions,” New Jersey, April 2010: http://law.justia.com/cases/new-jersey/appellate-division-published/2010/a0964-09-opn.html