In today’s Too Much Media, LLC v. Hale, the New Jersey Supreme Court considered what sorts of online speakers are covered by New Jersey’s Shield Law, which gives people connected with the “news media” an essentially absolute privilege not to disclose sources and other information that they’ve gathered. (This privilege is considerably stronger than the one provided by many state laws, and that the one that some federal courts have read the First Amendment as securing.) The court acknowledged that defendant had First Amendment rights to speak — the same First Amendment rights that members of the mainstream media possesses. The question is what additional statutory rights the defendant had, and that was a question of statutory interpretation, not constitutional law.
Shellee Hale, who said she was investigating alleged crime in the pornography industry, posted various allegations on an online message board, which was a discussion forum open to all commenters. Too Much Media sued Hale, claiming her statements libeled her, and it demanded information about the sources on which she based her statements.
Under New Jersey’s Shield Law, any “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 quasi-legal proceeding” may refuse to disclose his sources and the other information that he’s gathered. The statute defines “news media” 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.” “News” is defined as “any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect.” And “in the course of pursuing his professional activities” is defined as “any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter ....”
The New Jersey Supreme Court held that Hale — as a poster of comments to an open message board — didn’t qualify as a “person engaged on, engaged in, connected with, or employed by news media” under the statutory definition, though it concluded that many bloggers might well so qualify:
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.
Certain online sites could satisfy the law’s standards. In O’Grady v. Superior Court, for example, a California appellate court held under federal and state law that the reporter’s privilege applied to an individual who claimed to operate an “‘online news magazine’ devoted to news and information about Apple Macintosh computers and compatible software and hardware.” The court observed that “the open and deliberate publication on a news-oriented Web site of news gathered for that purpose by the site’s operators” was “conceptually indistinguishable from publishing a newspaper, and we see no theoretical basis for treating it differently.” The appellate panel pointedly contrasted the site with “the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chat room, bulletin board system, or discussion group.”
Also, in Blumenthal v. Drudge, a federal district court readily assumed that Matt Drudge, the creator of “an electronic publication called the Drudge Report,” qualified for the reporter’s privilege under the First Amendment. The website started as “a gossip column focusing on gossip from Hollywood and Washington, D.C.,” but now contains breaking news items and links to various articles. Though not a conventional news outlet, the Drudge Report has evolved into a forum that shares similarities to traditional media. A single blogger might qualify for coverage under the Shield Law provided she met the statute’s criteria. In that regard, defendant cites to the Pornafia website she created and claims that her posts on Oprano stemmed from articles she was preparing for Pornafia. Whether Pornafia might some day fall within the Shield Law cannot affect the analysis in this case, though, because defendant did not use Pornafia in the manner she had announced. She concedes that she never launched the news magazine portion planned for Pornafia, and all of her comments relevant to this case appeared exclusively on Oprano. Because defendant’s postings on a message board do not satisfy the requirements of the Shield Law, defendant has not made out a prima facie showing that she is entitled to its protection.
The court also concluded that people who publish blogs and similar publications could indeed qualify. Though “self-appointed journalists or entities with little track record who claim the privilege require more scrutiny,” they could indeed qualify if they are “similar” enough to “newspapers, magazines, press associations, news agencies, wire services, radio, [or] television”; the court’s favorable citations of O’Grady and Blumental v. Drudge suggest what might qualify as sufficient “similar[ity],” though the court gives little extra guidance. (Recall that “similar” is the statutory language, not the court’s invention.)
The court does note one factor that should not be required, and that I assume the court thinks shouldn’t even be relevant (but that the intermediate appellate court in this case did think was highly relevant):
Maintaining particular credentials or adhering to professional standards of journalism — like disclosing conflicts of interest or note taking — is ... not required by the Shield Law. Amicus NJMG suggests that industry practices vary widely and that some characteristics highlighted by the Appellate Division are not followed. Regardless, the statute mandates a connection to “news media” and a purpose to gather or disseminate news; it does not limit the privilege to professional journalists who follow certain norms.
Thanks to How Appealing for the pointer.