By Mike Kitay
State shield laws are crucial for the journalism profession to function properly. Many states differ as to the specifics of their law, but for purposes of this article, New Jersey’s shield law will be discussed. Like all shield laws, New Jersey’s law protects journalists from having to reveal their sources to anyone including courts, grand juries, administrative agencies, and legislatures to name a few. Clearly, journalists must have a legal way to ensure their sources confidentiality, or else why would anyone trust a journalist enough to be a source? With the dawn of the internet, the journalism profession has evolved exponentially. Accompanying this evolution is the blogging revolution where anyone with an internet connection can start one and purport to be a journalist. This is not to be confused with online forums, which are another medium through which people can express their thoughts online. Two recent New Jersey Superior Court cases have taken the issue of online bloggers and posters being protected by the state’s shield law. What separates these cases is whether the court decided that the writer was acting in a journalistic capacity.
Tina Renna is a blogger, self-proclaimed watchdog, and the owner of her blog,CountyWatchers.com. She has been at the throat of Union County officials by posting stories that reveal not so flattering things about them, specifically in their official capacities. Following Hurricane Sandy, Renna published in a December blog post that 16 government officials had misused portable government owned generators, but did not name them. The Union county prosecutor then subpoenaed Renna for her sources in order to find out who these 16 employees were, all-the-while insisting that he was not interested in her sources, but in investigating the claims she made. Renna refused and argued that revealing the names could potentially reveal her sources and so fought the subpoena in a NJ Superior Court. She argued that she was protected by the state’s shield law even though she wasn’t associated with any official news organization. This is indeed the gray area of the law that this decision has partially clarified. The court agreed with Renna that she is protected under the law and Judge Karen Cassidy said that Renna “obtained material in the course of professional news- gathering activities.”(nj.com)
In another NJ Superior Court case, TMM(Too Much Media) LLC v Hale, the judge ruled against the argument for protection under the state’s shield law. This case illustrated the limits the law will stop at in protecting online posters. Shellee Hale has been on a crusade of sorts against the online porn industry ever since she was “cyber-flashed”(syllabus)one day. She has investigated the online porn industry and attempted to create a website in 2007 called Pornafia. She intended this website to be a bulletin board of sorts where the public could comment and discuss possible illegalities in the online adult entertainment industry. She never got the site up and running and instead posted multiple comments on the forums of the website Oprano. Hale posted comments about the recent revelation in the news that a potential NATS breach may have revealed online adult website customer information. NATS is a piece of software that TMM created to allow adult industry websites to “keep track of access to affiliated websites and determine what commissions are due the referring sites.”(Syllabus) She commented that TMM had broken the law and not only profited from the breach, but intimidated people who questioned them essentially. TMM then sued Hale for defamation and false light, which is basically publishing a false and offensive statement. During discovery, TMM lawyers attempted to depose Hale and she refused to answer questions because,she argued, she was protected under the state’s shield law. The trial court ordered an evidentiary hearing to determine whether Hale fell under the protection of the law. The judge decided that she did not. The Appellate Court affirmed and the case then went to New Jersey’s Supreme Court, which ultimately affirmed the Appellate Court’s decision. The Appellate Court zeroed in on the news gathering process in order to decide the matter. Was the way in which she investigated the breach comparable to normal journalistic practices? The court concluded no because “there was no mutual understanding of confidentiality between defendant and her sources.”(syllabus) She also didn’t try to get the other side’s position on the matter; she didn’t reveal herself as a reporter to her sources, and she basically regurgitated what others had said instead of formulating her own original piece of work. This is essentially how the court has kept just anyone from claiming protection under the state’s shield law. It was the way in which Hale obtained her information that ultimately determined whether or not she could be considered a journalist. The court said she didn’t follow journalism’s established best practices. The court also made a distinction between a post on an online forum, and an actual news agency. The state’s shield law said that “other means of disseminating information be similar to similar news sources to qualify.”(Leagle.com)
So one may ask what is the difference between this case and Renna’s case? What is the difference between posting on a blog or a forum? Simply put, the Hale court decided that online forums are not “similar” enough to traditional news sources. If you look at news sites, blogs, and forums, they all essentially allow people to publish information. Blogs seem to be more accepted now a-days than they used to, but that doesn’t mean they automatically fall under a state’s shield law protection. The courts in both cases seem to distill the essential factors as the means in which the information was obtained. That is after all what sets journalists apart from mere bloggers. Journalism is a respected profession that prides itself on its journey for the truth and integrity. It is about making sure that anything that is published is correct. This isn’t to say that there is a clear, delineated line between blogs and traditional online news outlets. Interestingly enough, a NJ Supreme Court decision in 2011 declared that online message boards are not included in the state’s shield law.
The Renna case brought the internet realm under the protection of the law. With the journalism profession evolving so fast, there is no way the court can deny blogs from falling under the shield laws when it is increasingly become the go to medium for news consumption. Judge Cassidy referred to the Hale case when she said, “digital news outlets, particularly blogs, are increasingly present and vital to the delivery of news to the public in our modern age.”(gossipy.co) What did the Huffington Post start off as if not a blog in essence? The Hale case that Cassidy referred to said that courts must look at past publications of the defendants. Here, Renna had a solid track record and even wrote for traditional news outlets while Hale didn’t have such a record. The question still remains, what is a news medium? Thus we come back to journalism practices. Renna argued that she and her group were the only people investigating and writing about the Union Country government and the judge agreed. After all, the media is the fourth estate and a lever of accountability for the government. Judge Cassidy actually praised Renna’s journalistic practices. The Hale case outlined three criteria in which to evaluate these cases: connection with the news media, purpose to gather or disseminate news, and a showing that the materials sought were obtained in the course of professional news gathering activities. Judges must decide these factors on a case by case basis. Also, they look at whether the defendant presented themselves as a journalist and agreed to keep their sources confidential. In the Hale case, she didn’t, while in the Renna case she did.
So how do these two court decisions affect journalism’s online future? The opposing council in the Renna case argued that Renna could have made up the 16 employees, and that their was no way to verify the truth. Yet, it is not the media’s responsibility to do the DA’s job. If indeed these employees did misuse these portable generators, then the government should be able to investigate on their own. After the decision came down, Renna blogged, “I am the first blogger in New Jersey history to be deemed protected by the New Jersey Newspersons Shield Law and an important precedent has been set which may protect and inspire other citizen journalists to watchdog their government in place of traditional journalism…”(gossipy.co) Perhaps we are living in a time where a significant transformation of the journalism profession is occurring in which the ability to tell the news is at anyone’s fingertips. Just because one doesn’t have the money to publish a newspaper or magazine or hasn’t been hired by a news agency, doesn’t mean they shouldn’t be able to partake in news dissemination. With more people performing the role of watchdog, and investigating issues other more formal news agencies are not, perhaps we will see a surge in revelations of government and corporate malfeasance. Yet, this also means the courts will be having to play a more crucial role in determining just who constitutes a journalist. Will a set of standards and guidelines be set by the courts in this regard? The courts must ensure that the integrity of this profession be guarded against an onslaught of “wanna-be journalists” whom adhere to no traditional news gathering principles. Shield laws are their way of doing so. Legislatures create them but the courts must decide whom the journalists are. Perhaps we will start to see legislatures define what a journalist is more specifically in their shield laws. In the end, it is the practices journalists have honed over the years that make the judge’s jobs a little easier in deciding these matters.