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.
In a recent column by Ron Miller there was an interesting discussion that incidentaly revolved around this issue. At least I took this point in the thread and I commented on the issue from the point of view of journalism in Puerto Rico which requres a state permit for journalists.
Your article goes deeper in the issue but unfortunately the problem at hand is too broad and too far reaching to be adequately covered. However there is immense value in your article: this issue need to be addressed and followed up and your analisys seems to me to be totally on focus and in the correct direction.
May I suggest that you consider a series of articles, such as some that this site has developed on other issues, addressed and focused at least, in a broad coverage of the pertinent details and facts of Journalism and Blogging: State of the Law and Possible Developments. The fact is that in the near future, the posibility of blogging itself may have to be redefined or otherwise the bloggers, wether profesional or amateurs and that means many of us, may have to think twice before blogging anything.
Ah but message board posts? I do see a difference there.
As do I, kim. If journalistic considerations can be applied to any random message board post, it seems the door is left open for libelous claims to run rampant.
As a journalist and a blogger I feel violated by these types of restrictions. With the amount of corporate-sponsored information outlets, bloggers aresometimes the only ones able to get the truth out.
Perhaps bloggers in NJ and elsewhere will need to talk to the US military and get set up with one of these shadow Internet kits:
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.”
Well. The jig may be up in terms of her struggle not to reveal her source. However, it ultimately serves her greater purpose to reveal her source, because that revelation will prove that she didn't just make her story up. And that, after all, is what the plaintiff probably was hoping to be the case.
The context of the posts TMM parsed out of a thread from Oprano and included in their complaint were intentionally sanitized to make them appear defamatory. I wrote about a Class Action Law Suit that had been filed against TMM tinyurl.com/3gkea2t I reported it just after it hit Pacer.
The discussion on the forum followed a re-post of a portion of a piece I wrote and linked to on my own website (see pages 2, 6 and 8 of the NJ Supreme Court opinion, they acknowledge this). The very issue they were asked to rule on they avoided, focusing on one venue but not the other. The source I am protecting was threatened and their safety was and still is my concern.
The short answer: the states, like the feds, want to control everything, but settle for as much as they can get away with. As long as we allow them to run over us and ignore our rights to free speech (even if people aren't "journalists" they still have the right of free speech, right?) then they will do it more and more often, in more and more ways, until we have nothing left. Don't give them that first inch, because it's unlikely they will settle for a mile.
"Is TMM required by law to announce the possibility of a breach of their data base?"
This was also the same question that jumps to my mind. In truth, how many companies do really announce data breaches? From the many security articles I have read, one of the major drawbacks to fighting cybercrimes is the unwillingness of many companies to disclose data breaches. So I really don't the see the moral high ground on which this blogger is holding TMM to disclose any data breaches.
Between the issues in New Jersey, the issues in Tennessee, and the draw backs from Amazon, I would like to know what is the motivation for restricting these rights in specific areas?
Is it fear? Is it greed? Is it frustration with their own loss of control?
This was a really helpful blog, Robert. I had picked up the New Jersey story and understood that it wasn't a determination that no bloggers were journalists - but I hadn't picked up that the decision related to message board posts.
The distinction often made in casual conversation between journalists and mere bloggers is often frustrating. I've been a blogger on various subjects for several years now. I have a background in print journalism, but I think I've had only one story appear in print - as opposed to online - in the last five years. That's the nature of journalism right now. I do consider my blogging, of course, to be journalism.
Ah but message board posts? I do see a difference there. I think the takeaway is that if you're going to break a big or contentious story and if there is any concern about sources - break it as a story, not as a message board comment.
That's the rub. There's no enthusiasm for empowering the state to hand out "journalist" licenses.
And... the Web has let us all become self publishers, at no or minimal cost.
Can't that be journalism?
Personally, I am thinking about launching one or two ad-supported blogs (on topics vbery different from what I cover here). Should those blogs be "lesser" than what I write at this venue?
Last week, I issued an ebook via Kindle - is it per se lesser than the books I've done with Warner Books, Putnam, Entrepreneur Press, etc?
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