Constitutional Law

N.J. high court weighing limits of journalist-shield law

By By The Associated Press

TRENTON, N.J. ? Shellee Hale readily admits she operates outside the boundaries of traditional news media, but says that shouldn't disqualify her from being covered by a New Jersey law that protects reporters from having to identify confidential sources.

That contention is at the heart of a lawsuit argued before New Jersey's Supreme Court yesterday that is putting the state?s so-called shield law under a microscope in a case that could resonate with countless online commentators.

Hale, of Bellevue, Wash., was sued for defamation by Freehold-based Too Much Media over comments she posted on an online bulletin board three years ago that accused the company of engaging in fraudulent practices and threatening the life of someone who divulged details about it, according to a court filing. Too Much Media makes software used by many online porn sites to track traffic from other sites to determine how much those sites should be paid in commissions.

Hale claimed she was gathering information for an investigation of organized crime infiltration of the online porn industry and planned to publish her findings on a Web site and possibly in a book. She invoked the shield law to avoid identifying the person who was threatened and another source who first told her of the threats.

A judge rejected the argument in 2009 and characterized her comments as the rants of "a private person with unexplained motives for her postings." A state appeals court concurred, writing that her postings on the website Oprano.com, which bills itself as "The Wall Street Journal of the Porn Industry," "were not made in the context of any recognized aspect of the news process nor, we conclude, by a 'newsperson' in the course of her professional activities."

"I'm not traditional. I'm a citizen journalist," Hale said yesterday. "As citizens we are told, 'If you see something, say something,' and I have a duty to report. I think what I do is really important."

Much of yesterday's session was spent parsing the language contained in the New Jersey statute, which dates back to 1977, long before the Internet brought a sea change to news distribution. Justices and attorneys agreed that New Jersey's law is one of the broadest in the country in its protection of journalists' sources.

The law protects anyone "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? . ?News media? means 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."

That definition is broad enough to cover many forms of reporting, Hale's attorney, Jeffrey Pollock, argued, "A fifth-grade girl who investigates why there are cockroaches in the chocolate chip cookies and publishes it in the school paper" would be covered, he said. So would someone not employed by a news-media outlet, such as a book author.

Justice Helen E. Hoens questioned whether such a wide definition would lead to chaos.

"You would pull in anybody and everybody who opens a website and says 'Here I am, I'm a journalist,'" Hoens said. "There are controls for lying, cheating reporters; they are called editors and publishers. This is not that. It is 100 percent unregulated territory where folks can go out and proclaim, 'I'm in the news business now and I don't have to tell you where I got the inside scoop.'"

Attorney Joel Kreizman, representing Too Much Media, argued that Hale's planned Web site, www.pornafia.com, was "to be an information exchange, not the '60 Minutes' review of the adult industry."

Full post as published by First Amendment Center on February 08, 2011 (boomark / email).