New Jersey judge rejects blogger's newest assertion of statutory privilege

A New Jersey judge ruled once again that a blogger is not protected under the state's shield law, rejecting her latest claim that she was writing a nonfiction book.

The state Supreme Court ruled last year that Washington private investigator Shellee Hale could not assert the shield law in a 2008 defamation suit against her and remanded the case to the trial court.

Monmouth County Superior Judge Linda Grasso Jones rejected Hale's claim because her "contention that she was writing a nonfiction book is not credible and cannot be accepted." At one point, Hale testified in court that her book was fiction.

Hale most recently argued that accusations she posted on Oprano.com, a forum for the adult entertainment industry, should be covered by the state's shield law because she was gathering information for a nonfiction book. Too Much Media LLC, a New Jersey software company, sued Hale for defamation after she wrote in the forum that the company threatened her life and violated New Jersey identity theft protection laws.

The judge ruled that it was unclear whether Hale's uncompleted book was sufficiently developed to meet the state Supreme Court standards.

"The only reported case in New Jersey that addresses the issue of an assertion of the Shield Law by the author of a nonfiction book, involved a completed nonfiction book that had [been] written and published," the opinion stated. "The present matter involves questions about a nonfiction work at the research stage, with perhaps some portion in draft form."

The shield law protects reporters from being forced to disclose confidential information or sources in state court. The state high court previously found that non-traditional journalists may be entitled to the reporter's privilege. However, the law "specifically requires that other means of disseminating news be ‘similar’ to newspapers, magazines, and the like."

Hale’s attorney, Jeffery Pollock, said the purpose of the shield law is to protect a writer’s notes and materials, and the court contradicts the shield law by asking to see more evidence of Hale's publishing intention.

“The courts are requiring a really high level of proof,” he said. “I think that the reality is the courts are looking very narrowly at the application of the shield law. I can’t imagine anyone qualifying at this point.”

According to Pollack, the judge based most of her decision on Hale's previous arguments and not on the facts most recently presented to her — including Hale's assertion that the book is nonfiction.

Hale said she is confused by the judge's decision.

"They say I'm not working as a journalist, and then I bring in a publisher … and they ignore it," she said. "With this decision, I can't protect my source, so now my source has to protect herself — or himself."

The attorney representing Too Much Media, Joel Kreizman, said the most recent hearing should never have happened.

“I blame Ms. Hale for suddenly coming up with a claim that she was writing a nonfiction book when she had ample time to present that claim,” he said. “It was fabricated. She previously testified that what she was working on was a fictional book. Suddenly three years later she is claiming something else.”

Kreizman believes there is no reason the privilege issue should continue to be litigated.

“We now have had six judges and five justices who have looked at this, and they are unanimous in saying that she is not a reporter and not protected under shield law,” he said. “That should be enough.”

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief urging the New Jersey Supreme Court to adopt a broader view of who qualifies as a journalist when asserting the statutory privilege.

Related Reporters Committee resources:

· News: New Jersey appeals court concurs that blogger is not a journalist

· News: Blogger not covered by New Jersey shield law, court says

· Shield laws and protection of sources by state

· New Jersey – Privilege Compendium: A. Shield law statute

· Shield laws and protection of sources by state

· Brief: Amicus brief in Too Much Media, LLC v. Hale

· News: N.J. shield law not limited to professional journalists