Justices of the New Jersey Supreme Court
Remember the "press shield"? We last discussed it
back in December 2009, when the Senate Judiciary passed (and then the Senate abandoned)
a bill which would have finally created under federal law a set of legal protections to online and offline journalists from having to reveal confidential sources.
It is a statutory protection; the Supreme Court held in Branzburg v Hayes (1972) that the First Amendment does not require that journalists be protected from testifying as to their sources. Still, such laws exist in about 40 states, and one of them is across the river from me in New Jersey, where the law states:
[A] person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasilegal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere:
a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and
b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.
Which brings us to Shellee Hale, a resident of Washington State, who started posting on the "business of porn" message board site Oprano.com regarding alleged security flaws in a piece of software used to manage paid access to online adult sites. The makers of the software (based in Freehold, NJ, Birthplace of the Boss) sued Hale for defamation and false light, and as part of that lawsuit has sought Hale's testimony regarding who her sources in the industry were. Hale protested, seeking to invoke the protection of the press shield.
The New Jersey Supreme Court's unanimous opinion today (PDF) did not, as the press would have you believe, hold that there is "No shield protection for bloggers".
Instead, the Court held, this online poster didn't qualify for the privilege because three elements were required under the statute for any self-proclaimed journalist to be protected -- a connection to news media; a purpose of gathering or disseminating news; and a showing that the materials sought were obtained in the course of professional newsgathering activities. And the ruling in Shellee's case is that this random online message board was not the "news media". While she expressed an intent to create a "Pornafia" news site to contain all her reporting, she never did so -- and the message board on which she posted did not suffice as news media:
Message boards “promote[] a looser, more relaxed communication style.” They lack “formal rules setting forth who may speak and in what manner, and with what limitations from the point of view of accuracy and reliability.” By simply entering text into a ready-made block on a message board website, anyone can post views and reply to comments posted by others.
In essence, message boards are little more than forums for conversation. In the context of news media, posts and comments on message boards can be compared to letters to the editor. But message-board posts are actually one step removed from letters that are printed in a newspaper because letters are first reviewed and approved for publication by an editor or employee whose thought processes would be covered by the privilege. Similarly, some online media outlets screen comments posted about an article and edit or delete certain posts. By contrast, defendant’s comments on an online message board would resemble a pamphlet full of unfiltered, unscreened letters to the editor submitted for publication -- or, in modern-day terms, unedited, unscreened comments posted by readers on NJ.com.
Those forums allow people a chance to express their thoughts about matters of interest. But they are not the functional equivalent of the types of news media outlets outlined in the Shield Law. Neither writing a letter to the editor nor posting a comment on an online message board establishes the connection with “news media” required by the statute. Therefore, even under the most liberal interpretation of the statute, defendant’s use of a message board to post her comments is not covered under the Shield Law. We do not believe that the Legislature intended to provide everyone who posts a comment on Oprano or a response to an article on NJ.com an absolute reporter’s privilege under the Shield Law. We cannot find support for that proposition in the words of the statute or any other statement of the Legislature’s intent.
The opinion goes on to note that other online posters
could qualify for protection -- sites where content is edited or curated for publication clearly would qualify, they say, as would a solo blogger (they reference Matt Drudge, given
this 1998 decision) who is functioning as a news media entity.
So, you must be asking, what's in it for me, here? First off, let's be clear: I'm just spitballing here, and I'm not your lawyer. So don't take this as legal advice. But I would predict that the front page posters on this site pretty clearly would be treated as journalists for NJ shield law purposes because of the editing and curating of what we do. I was selected to write for the front page, and someone looked at this story before it went up. That's going to meet both the test of publishing somewhere "similar to" traditional news media outlets, and being sufficiently connected to the site.
I don't know how those questions get answered for diarists and commenters here. It doesn't seem likely that the diaries and comments -- being published without any prior screening -- would as a general rule be deemed sufficiently similar to traditional news media to count, though the rec list function and other forms of user moderation would weigh in on any evaluation of this site. Moreover, a diarist could argue that she had demonstrated sufficiently regular behavior here to be functioning as a one-person news media entity while publishing on the site. We're clearly more "newsy" than Oprano.com as a general matter, and NJ law doesn't require a "journalist" to maintain any particular credentials or adhere to professional standards of journalism.
But the Court seems pretty clear that they don't want every random Facebook poster or person who creates a blog to be able to protect their sources from scrutiny; a "one-time" journalist is not going to be protected, and mere "intent" to operate as a journalist is not enough. In short, I don't know if a New Jersey court would determine whether the Diaries section here is sufficiently "similar to" traditional news media for any protection to apply. The second question for everyone else remains whether you're sufficiently "connected" to this site to satisfy the statute, and I don't know what a New Jersey court would say on that question either. This decision does not sufficiently delve into that question; prior NJ decisions might.
Remember: this isn't a question of whether you've got the First Amendment right to speak and report. The question here is whether you have the right to protect confidential sources from scrutiny under New Jersey law, and as a practical matter it's not going to come up very often. Still, I wish I could give you clearer guidance than this. To learn about the law in your state, visit the Reporter's Committee for Freedom of the Press site.