In the immortal words of Sarah Palin, you betcha if Hale were a resident of New Jersey, this case would have come out different…you betcha
from www.law.com – The state Supreme Court has agreed to decide whether a blogger sued for defamation over her postings on an internet bulletin board can raise New Jersey’s statutory protection of news reporters’ sources and editorial processes.
A trial judge and the Appellate Division have said no, finding the privilege inapplicable to online posters not engaged in gathering or disseminating news.
They found that although Shellee Hale, of Washington State, runs a website reporting on technical and criminal activity in the adult entertainment industry, she was not acting in that capacity when she posted statements on another site that were critical of Too Much Media, a Freehold software company.
The court agreed on Sept. 8 to hear Hale’s interlocutory appeal, “limited only to those issues relating to the New Jersey Shield Law and the First Amendment of the United States Constitution.”
The appeal, in Too Much Media v. Hale, No. 66074, is joined by amici curiae North Jersey Media Group Inc. and the New Jersey Press Association.
Hale is being sued over statements she posted on Oprano.com, a website described as the “Wall Street Journal for the online adult entertainment industry.”
Hale accused Too Much Media of fraud and “illegal and unethical use of technology,” violating New Jersey’s Identity Theft Protection Act and profiting from the theft of e-mail addresses stolen by hackers in a 2007 security breach. Discussing a competitor’s suit against Too Much Media, she said the company’s principals “may threaten your life if you report any of the specifics.”
Hale claimed that her comments were made in the course of investigating criminal activity in the internet porn industry and were meant to inform the public and facilitate debate about frauds, scams, and misuse of technology.
Hale set up a website, Pornafia.com, to apprise the public of her findings, issued a press release and even let the Washington State attorney general know what she was up to.
Too Much Media was planning to depose Hale about her sources when she moved for a protective order under the Shield Law, N.J.S.A. 2A:84A-21a(b), which generally allows reporters to refuse to disclose their sources in court.
But Superior Court Judge Louis Locascio found Hale was simply posting comments on a bulletin board and disbelieved that she was investigating Too Much Media for her own website. The Appellate Division agreed, saying 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.”
Hale’s lawyer, Jeffrey Pollock, urged the court to review the case, arguing in his May 21 brief that the published appeals court ruling “has now shattered the Shield Law’s broad reach.”
“Despite paying lip service to the Legislature’s intent and the Court’s admonitions to construe the Shield Law as broadly as possible, the Appellate Division’s decision rewrote the Shield Law to bar Hale and her source from its protections,” said Pollock, of Fox Rothschild in Princeton.
“It subjectively assessed the competence of Hale’s investigation and reporting instead of focusing on Hale’s disclosed intent — unchallenged by plaintiffs — to investigate and report on issues of public concern,” Pollock added.
The amici’s lawyer, Bruce Rosen, said in a June 21 brief that the appeals court’s definition of who is a news reporter “bears little or no relationship to 21st Century journalism.”
“While the statute was written before the advent of new media, it is written broadly enough to be applied to new media,” said Rosen, of Florham Park’s McCusker, Anselmi, Rosen & Carvelli.
Moreover, he said, the Shield Law is not limited to protection of confidential sources. He said the court, in Maressa v. New Jersey Monthly, 89 N.J. 176 (1989), made it clear “that the privilege encompasses a plethora of newsgathering activities, … [which] run the gamut from procuring information to disseminating information.”
Too Much Media’s lawyer, Joel Kreizman, in a June 28 brief, argued that while the law’s protections are broad for journalists, “not any and every person who seeks to benefit from the privilege is entitled to it.” He cited Senna v. Florimont, 196 N.J. 469 (2008), in which, he said, the court “emphasized that while the press, the media, is entitled to special deference, at the same time that deference is given only to legitimate members of the media.”
Kreizman said Hale published her defamatory statements on a message board, not a news blog or any other media service. “It was akin to a conversation, albeit online, and not a medium for dissemination of journalistic content, he said.
“Unless the Court is open to considering the universal applicability of the Shield Law to anyone who claims to be a journalist/member of the media, the motion to allow the interlocutory appeal should be denied,” said Kreizman, of Oakhurst’s Evan, Osbourn & Kreizman.
“We are left with a position that anyone who says, under oath, ‘I am a journalist’ is thereby to receive the benefit of the Shield Law,” he said. “It matters nil that the person makes that affirmation has no credibility.”
One other state court has touched on the issue. In O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72 (2006), the California Court of Appeals denied enforcement of a subpoena seeking names of confidential sources informing articles on two internet-only publications about soon to be released Apple Computer products. But unlike that case, Hale posted her comments on a separate website that provided an open forum for comment.