Let’s get this out of the way first. Shellee Hale, the Washington resident who was the defendant in yesterday’s Supreme Court ruling, was no blogger. Under the facts of Too Much Media v. Hale, she was simply the owner of a website address that never launched and a person who commented on a porn-related message board about a New Jersey company. Calling her a blogger or arguing that she was a member of the news media is borderline offensive.
The idea that this case is some landmark activist decision is (for once with this court) way overblown. The fact of the matter is that no one in their right mind should expect that comments posted publicly on a website are protected by the freedom of the press. And that, Save Jerseyans, has nothing to do with bloggers.
The court made a unanimous 5-0 decision, justices from both sides of the aisle came together for this one and actually interpreted the statute by what it actually says. In short, the court said that to be protected by the shield laws in New Jersey, a person needs to be connected with the news media in some way, with some outlet that disseminates information to the public through a number of different means, including electronically.
My reading of this ruling leads me to two conclusions, neither of which are that bloggers are in trouble in New Jersey.
- The court has left the door open for bloggers who are hauled into court to make a case that they are a part of the new media
- The shield laws are terribly outdated (they make no mention of the internet specifically at all!) and the Legislature should take this opportunity to update them with the changes in the market and technology.
Jay Lassiter (of Blue Jersey) and I gave statements today to WHYY on the decision, and we both came to a similar conclusion. Our websites, and others like them, would not have to worry about this decision. This is not the type of thing that would have a chilling effect on what we do everyday.
However, my only concern is that this would give litigious New Jerseyans some precedent to try and haul a blogger into court (even if they are ultimately unsuccessful) when something controversial gets published online. So, I am calling on the Legislature to act.
The Shield Laws in this state are obsessed with the notion of a “connection” or “employment” by the news media as a key credential for protection. The law should essentially be expanded to expressly include blogs that fit a certain criteria; blogs that serve a purpose and have a track record shows a consistently active and valuable addition to the discourse and dissemination of information to the public. Not everyone with a free website should get shield protection, that would be insane, but if a blogger can establish a level of professionalism that mirrors that of a traditional journalist, then why not protect them with specific language to ensure that lawsuits never even see a courtroom?
The bottom line is that in 2011, the “traditional” media is not so traditional anymore. Look no further than the cutting of NJN and the death of so many long running print newspapers. More people are getting their information online than ever before, and blogs of both local and national significance are a big part of that. It is time that the law caught up and reflected that.
