As Gizmodo Editor’s Home Is Raided, NJ Ruling Should Provide Comfort to Bloggers
Journalistic protections—specifically, the shield law that protects journalists from having to identify their sources—was the subject of a recent New Jersey appellate court ruling.
Shellee Hale, an aspiring blogger, claimed that she was investigating Too Much Media (TMM), a software company, for possible fraud. After Hale posted comments on a message board, TMM sued her for defamation, and demanded that she identify the sources of her accusations. Hale said that she was a journalist and therefore protected under New Jersey’s shield law.
“[I]n a rare case examining who has the right to legal protections extended to journalists,” Kim Zetter wrote for Wired magazine, “[t]he court ruled that Shellee Hale … is not a journalist and is therefore not protected by the state’s shield law.”
Encouragingly, the court wrote: “We read New Jersey’s Shield Law to similarly focus on the news process rather than the medium or mode through which the news is disseminated to the public.”
The court then examined the defendant’s conduct to determine whether she was “involved in the news process,” noting that “[i]t is not enough to simply self-proclaim oneself a journalist.” The court noted the defendant did not promise confidentiality to her alleged sources, keep notes or adhere to any other standards of responsible journalism, such as fact-checking, editing and disclosing conflicts of interest.
Furthermore, in ruling against the defendant, the court made clear that its holding should not be read to apply beyond the facts of this case: “Nor are we deciding what is and what is not news. We consciously avoid the occasion to define these terms, recognizing the difficulty and futility of doing so. We hold only that … [the] defendant has 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.”
The TSA’s aggressive approach caused a predictable outcry from defenders of freedom of the press. It also put renewed focus on the “Free Flow of Information Act of 2009,” a bill pending in Congress. The Library of Congress Web site offers information on the bill, including the latest major action taken: “12/11/2009 Placed on Senate Legislative Calendar under General Orders. Calendar No. 225.”