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.

Federal reporter's privilege law this year?

In late March the U. S. House passed the Free Flow of Information Act of 2009, H. R. 985, which is now before the Senate Judiciary Committee.

If enacted, the law would provide conditional protection against compelled testimony or production of documents related to information obtained or created by a covered person as part of engaging in journalism.

In order to obtain testimony or a document that would disclose the identity of a confidential source, a court must find that disclosing the identity of the source is necessary to:

• prevent (or identify the perpetrator of) an act of terrorism or other harm to national security;
• prevent imminent death or significant bodily harm; or,
• identify a person who has, in violation of certain federal laws, disclosed information concerning trade secrets, individually identifiable health information, or nonpublic personal information.

The bill defines a "covered person" as someone who regularly reports and writes on matters that concern local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain.

‘Journalism’’is defined as "the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public."

Stay tuned.

Ironic, Isn't It?

Times.com reports that a defense lawyer for Anthony Pellicano, a private detective on trial for his alleged involvement in a wire-tapping scheme, is seeking subpoenas against two Times reporters to determine who allegedly leaked evidence, including taped conversations between Pellicano and a lawyer for mogul Kirk Kirkorian. Lawyers for co-defendant Terry Christenson recently filed a motion seeking an evidentiary hearing regarding leaks in the case.

Maybe This Time?

In Massachusetts, efforts are once again underway to establish a reporters' shield law. Bills are now on the dockets of the state house and senate to enact the Free Flow of Information Act. The law would prohibit compelled disclosure of sources of news or information procured by covered persons while providing services for the news media. It would also protect from disclosure notes and other material gathered by a covered person but not published in the news media. The text of the bills is not yet posted on the legislature's Web site, but you can find a copy of the text on the blog of fellow media lawyer Robert Ambrogi.