Blogger Who Posted Comments On Internet Message Board Is Not A "Journalist" Protected Under Shield Law, N.J. Supreme Court Rules

The N.J. Supreme Court held that a self-described journalist who posted comments on an Internet message board is not entitled to the protection of New Jersey’s Shield Law, a state statute that allows news reporters to protect the confidentiality of sources and news or information gathered during the course of their work. Too Much Media, LLC v. Shellee Hale, (Docket No. A-7-10, N.J. Supreme Court, June 7, 2011)

Defendant Shellee Hale claimed that she was looking into how technology was used to abuse women and decided to investigate the online adult entertainment industry. During her investigation, Hale spoke with government officials, attended industry trade shows, interviewed people, and collected information from porn web blogs. She also posted comments on message boards set up on websites pertaining to the adult entertainment industry which could be accessed by anyone with Internet access. On the website (Oprano), Hale posted comments accusing plaintiff, Too Much Media (TMM), of engaging in fraud and “illegal and unethical use of technology,” thereby violating New Jersey’s Identity Theft Protection Act. She also wrote that the company’s owners “may threaten your life if you report any of the specifics.”

Plaintiffs TMM and its owners sued for defamation and were planning to depose Hale about her news sources when she filed a motion for a protective order based on the newsperson’s privilege, N.J.S.A. 2A:84A-21, which protects journalists from being forced to disclose their news sources in court proceedings. Hale claimed that she was an online news reporter and that her comments, made in the course of investigating criminal activity in the Internet pornography industry, were meant to inform the public about the issue.

Hale’s motion for a protective order was denied. The trial judge ruled that Hale was not entitled to the protections of the newsperson’s privilege because she was not a journalist. Hale’s subsequent motion for reconsideration was also rejected. The Appellate Division then granted leave to appeal, and affirmed the trial court’s decision, concluding that the privilege was not available because Hale had not exhibited any of the qualities or characteristics traditionally associated with a journalist engaged in the news process

Hale filed a motion for leave to file an interlocutory appeal to the N.J. Supreme Court. The Court granted the motion in September 2010, but limited the issues to be considered to “only to those issues relating to the New Jersey Shield Law and the First Amendment of the United States Constitution.” Yesterday, the Supreme Court issued its decision, affirming the Appellate Division’s decision to deny Hale protection under the Shield Law, but modifying the Appellate Division’s judgment to clarify how courts should assess whether the privilege applies in future cases.

The Supreme Court ruled, first, that the case was about the Shield Law, not freedom of speech:

Defendant was free to exercise a right at the heart of our democracy by posting her thoughts online on Oprano’s message board … To the extent that [Hale’s] statements related to matters of public interest or concern, the actual malice standard would apply to evaluate the defamation claim against her.

Second, the Court held that the state Shield Law required those seeking its protections to have some connection to “news media,” defined in the law as “newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.” The Court then compared an online message board with the news media as defined in the Shield Law and found that message boards were dissimilar and not entitled to the Law’s protections:

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 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. (Citations Omitted) (Emphasis Added)

Third, the Supreme Court rejected the Appellate Division’s effort to identify criteria that would help determine whether a person qualifies for protection under the Shield Law. Instead, the Court relied upon the statute in requiring that, to invoke the Shield Law, a claimant must show that (1) they have the requisite connection with news media, (2) they have the necessary purpose to gather or disseminate news, and (3) the materials subpoenaed were obtained in the ordinary course of pursuing professional newsgathering activities.

As a result of the Supreme Court’s ruling, blogger Shellee Hale can be made to reveal her sources for her allegedly defamatory Internet postings about plaintiffs TMM and its owners.

The case is annexed here – Too Much Media, LLC v. Shellee Hale

Query: Would the Shield Law have protected Hale if she had posted an article containing the results of her investigation on her own website instead of in comments on a message board established by a third party provider? The Supreme Court does not answer that question, but suggests that the Shield Law might protect Hale if she had posted an article on her own website rather then merely posting comments on a message board:

A single blogger might qualify for coverage under the Shield Law provided she met the statute’s criteria. In that regard, defendant cites to [her own] website ….  Whether [Hale’s own website] might some day fall within the Shield Law cannot affect the analysis in this case, though, because defendant … never launched the news magazine portion planned for [her own website…]