N.J. shield law not limited to professional journalists

Aaron Mackey | Reporter's Privilege | Feature | June 7, 2011

A New Jersey Supreme Court decision announced Tuesday should make it easier for individuals associated with online publications and traditional media to invoke the protections of the state’s shield law.

While the court, in Too Much Media LLC v. Hale, found that the shield law does not apply to the defendant in the case, the decision threw out parts of an appellate court decision that would have required those seeking the law’s protections to show that they adhere to professional journalistic standards or have credentials from traditional media.

The decision also streamlines the court procedure for obtaining the law’s protections.

The lawsuit began when Shellee Hale posted a series of critical comments about Too Much Media and the company’s leaders on an Internet message board. The company filed a defamation suit against Hale, who then sought to invoke the shield law.

The court ruled Hale did not qualify for the shield law because the law requires individuals seeking its protection to have some connection to a publication -- online or otherwise -- that is similar to traditional media. The message board where Hale posted was not similar to a newspaper or magazine, the court found.

Although “the Shield Law does not limit its application to traditional news sources, it specifically requires that other means of disseminating news be ‘similar’ to newspapers, magazines, and the like,” the court said.

The decision is a victory for journalists because it rejected a lower court’s decision requiring individuals to show that they adhere to a number of traditional journalism practices before obtaining the law's protections, said Bruce Rosen, a New Jersey media lawyer.

The appellate court ruled that, when determining if a party is a journalist, a court should consider a number of factors, including whether the individual had press credentials, fact checked, attempted to contact the other side for comment, and understood professional ethics related to confidential sources and disclosing conflicts of interest.

In scrubbing the lower court’s requirements, the state high court ruled that whether the individual adheres to professional journalism norms is irrelevant.

“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,” the court said.

The upshot of the ruling means that it should be easier for traditional and online journalists to show a court that the law applies to them, said Rosen, who filed a friend-of-the-court brief in the case on behalf of New Jersey Media Group Inc. and the New Jersey Press Association. The Reporters Committee for Freedom of the Press also filed a friend-of-the-court brief in the case.

“If you collect news and it’s clear you’re connected to a news organization, you’ll be fine,” Rosen said. “If you’re not connected with any news organization and you’re venting online, you may not have those protections.”

Another key aspect of Tuesday’s ruling is that individuals associated with a news organization can invoke the shield law without the court having to hold a hearing. Those individuals need only certify to a court that they are associated with the news organization to gain the law’s protections.

And, even if the individual’s connection with a news organization is unclear, any hearing conducted by a court must be limited to an examination of whether the individual is connected to a news publication, whether the individual is attempting to gather and disseminate news, and whether the materials sought by the lawsuit were obtained during the individual’s newsgathering, the court ruled.

While some observers might view the decision as biased toward online or citizen journalists, Rosen said the court fairly drew the line between working as a reporter and commenting on a website.

New Jersey’s shield law is viewed as one of the strongest in the country, and the state’s courts have repeatedly read the statute as broadly as possible, Rosen said.

But if individuals who post comments online can receive a near-absolute shield from suit, that could create backlash among lawmakers who might seek to more narrowly define who is eligible, Rosen said.

Still, Rosen said that individuals who host blogs and view themselves as citizen journalists may face hurdles to invoking the shield law.

“For the general public, it makes it harder for individual bloggers to have automatic protection,” he said. “They’re going to have to pass that test.”