The headlines are shouting: Bloggers beware in New Jersey. The Star Ledger, the Garden State’s largest paper, shrieked: “NJ Supreme Court Says Blogger Not Protected from Revealing Her Sources.”
The Knight Center for Journalism in the Americas howled: "New Jersey Supreme Court rules shield law does not apply to blogger."
CBS News shouted: "NJ: No shield protection for bloggers."
I am in New Jersey; I am a blogger. Should I be running for cover as this blog goes live?
Maybe, just maybe, the media have gotten this story all wrong.
But first, understand this: There is no appeal of this decision, for all practical purposes. “The New Jersey Supreme Court decision is a final decision,” wrote Alain Sanders, a political science professor at St. Peters College in Jersey City, NJ, in an email to me. “States are... essentially free to provide whatever protective guidelines they wish to reporters.”
That means this decision matters -- a lot. Which further means understanding it is crucial. So what did the NJ Supreme Court say?
“The court did not say bloggers are not entitled to shield law protections. It said this blogger is not,” explains Les Machado, a Washington, DC, attorney and co-chair of law firm LeClair Ryan’s media, Internet, and e-commerce industry team.
The case in point -- Too Much Media vs Hale -- seems simple on its face. Shellee Hale -- a multi-career woman who says she is an investigator, reporter, and a crisis negotiator -- posted comments on Internet message boards claiming that Too Much Media, a New Jersey software company that works with online adult entertainment companies, had failed to report a breach of its database wherein user names were released.
Pornography consumers apparently savor anonymity; releasing their names to the public is a very bad thing. Not disclosing a breach, as Hale claims TMM did, ups the ante. She cited anonymous sources as backup for her claims.
TMM sued, and eventually, the New Jersey Supreme Court issued a ruling that Hale is not a journalist as intended by the New Jersey shield law, a very tough law that lets reporters conceal sources in most cases.
The NJ Supreme Court did not say Hale is not a reporter, incidentally. It said only that she isn’t as understood by the law, and therefore she isn’t protected under the law.
That is why Kevin R. Kemper, who teaches media law at the University of Arizona, says the plain take-away from the Supreme Court decision is that “the Court is punting back to the legislature. It is asking them to revise the law.”
This is the big issue. The nature of journalism -- the definition of “journalist” -- is in radical flux. Are your comments on this blog protected as journalism? Is this blog itself protected?
Once upon a time, journalism was easy to identify. It happened at newspapers, and some magazines, and that was it. Web 2.0 has shattered that model, and thus the NJ Supreme Court’s angst.
Actually, the angst is pretty much everywhere because, says Kemper, many states need to revise their laws covering journalists (“a lot are antiquated”).
Even so, stressed Machado, in its ruling the NJ Supreme Court “took pains to point out there are blogs that would get protection under the shield law -- but this blogger would not.”
That is because the case revolved around message board posts made by Hale, not around blogs or stories or investigative reports.
Hale, in a telephone interview, insisted to me that she had produced blogs and stories, but they had been knocked offline when she was shifting various services. But the NJ Supreme Court said little more than that message board posts as such do not qualify for whatever protections are extended to journalism. Period.
Hale, incidentally, says that from her end, the jig is up. “I fought a good fight and I lost. I will reveal my source when I am deposed.” She adds: “This will be debated for years in journalism classes.”
It’s your turn now. Post away on the message board below, but know that when in New Jersey at least, you probably have less protection that you thought.
— Robert McGarvey has been online and writing about the Internet for nearly 25 years.