As Gizmodo Editor’s Home Is Raided, NJ Ruling Should Provide Comfort to Bloggers

April 29, 2010 02:00 PM
by Colleen Brondou
Though some have misinterpreted the N.J. ruling to hold that bloggers aren’t protected under the state’s shield law, the ruling protects anyone affiliated with a news entity and engaged in the news process.

Are Bloggers Journalists?

After Jason Chen, editor of tech blog Gizmodo, wrote about a next-generation Apple iPhone prototype—left behind in a bar by an Apple engineer—police raided his home. But as ABC News reports, the criminal investigation has been put on hold “until it’s determined whether journalistic protections apply to this case.”

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.”

Analysis: Too Much Media v. Hale

Though some have been quick to interpret the New Jersey decision as saying that “shield laws protecting journalists from revealing sources don’t apply to bloggers,” or that “bloggers do not share the same legal protections that journalists are given,” the ruling doesn’t distinguish between journalists and bloggers; rather, it focuses on making a distinction between those properly engaged in the news process and those not.

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.”

Background: Proposed Federal Shield Law

After the attempted terrorist attack on a Northwest Airlines plane on Christmas Day 2009, the Transportation Security Administration issued new security directives. When several bloggers published a copy of those directives, the TSA visited the bloggers at their homes, demanded to know the sources of the information and seized computers.  One of the bloggers complied with the TSA’s requests, noting that he was not protected by any shield law.

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.”

Related Topic: Legal quandaries of blogging

Several bloggers have found themselves in trouble with the law in recent years, calling attention to free speech and other legal issues surrounding blogging.

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