No Sure Thing in Jersey

Earlier this week the Supreme Court of New Jersey heard oral argument in a case concerning the application of New Jersey's shield law to statements posted online by an independent, investigative blogger. The case is Too Much Media, Inc. v. Shellee Hale.


TMM is a New Jersey software company that provides software for Internet businesses, reportedly including those in the online adult entertainment business. 

Hale, a resident of Washington and former Microsoft employee, was investigating organized crime infiltration of the online porn industry, and had set up a Web site, Pornafia.com (which now forwards to shelleehale.com), to report on her investigative work.

Hale posted the remarks that are the subject of TMM's defamation action on a bulletin board of another site, Oprano.com, which describes itself as "the Wall Street Journal for the online adult entertainment industry." Hale allegedly accused TMM of engaging in fraudulent practices and of threatening the life of someone who divulged details of TMM's activities. 


In response to plaintiff's discovery seeking the identity of Hale's confidential source, Hale invoked the protection of the New Jersey shield law. The trial court and the lower level appeals court ruled against her.

At issue is whether a blogger such as Hale, who operated a Web site she claimed was intended for investigative reporting on issues of public importance, and who posted allegedly defamatory information about TMM on another Web site’s bulletin board, is a journalist entitled to the protection of New Jersey’s shield law and the First Amendment? Also at issue is whether the trial court erred in subjecting Hale to a preliminary hearing to determine whether she qualified for the protection of the statute.

You can read here an amicus brief filed in support of Hale by the Reporters Committee for Freedom of the Press, Gannett, and the Society of Professional Journalists . As noted in that brief, the New Jersey shield law was enacted in 1933 and is considered one of the strongest in the country.

An archived Webcast of the oral argument should be available here soon.

Stay tuned for more on the situation in New Jersey.

First Circuit pulls the plug on courtroom Webcast

In what may be a technically correct, but philosophically disappointing, decision, the First Circuit has prohibited enforcement of an order by U. S. District Judge Nancy Gertner, which would have allowed a "gavel-to-gavel" Web cast of a hearing in a case against college students for alleged illegal downloading of music.

In In re: Sony BMG Music Entertainment et al. the court concluded that Judge Gertner's order--based on a request by one of the defendants, grad student Joel Tennenbaum, represented by Harvard Law School Professor Charles Nesson, was based on a "palpably incorrect" interpretation of a local court rule.

Nesson is a founder of Harvard's Berkman Center for Internet and Society.

In a concurring opinion, Judge Kermit Lipez stated that "there are no sound
policy reasons to prohibit the webcasting authorized by the district court," and that the issue "calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome." He went on to note the irony that an audio recording of the oral argument in the hearing before the First Circuit was available on the court's Web site immediately after the argument.

To hear a recording of the hearing and view background material, go to The Recording Industry vs. The People blog.

Another site that contains a link to an audio recording of the hearing, and other information about the case, is Joelfightsback.com, a site apparently run by a group of students--under the guidance of Professor Nesson--assisting in Tennenbaum's defense.