A New Jersey court ruled that Shellee Hale‘s comments on a message board are not protected by state shield laws. As a result, Hale says she’ll have to turn over the identity of her sources.
Hale, as iMediaEthics has been reporting, was sued for defamation, false light and trade libel over her comments on an “adult entertainment industry” news site’s discussion board. Her comments on that site, Oprano, alleged that Too Much Media violated state laws that protect consumers from identity theft.
Hale told iMediaEthics in May 2010 that her comments were made while she was acting as a journalist. Hale, who also works as a private investigator and online life coach, says she made the comments as part of an investigation she started years ago in response to her being cyber-flashed during online life-coaching sessions. In a 2010 court ruling, a New Jersey appeals court noted that while Hale did identify herself by her full, real name in her online posts, she didn’t identify herself as a “newsperson. ” Read more about Hale’s case here.
A New Jersey court first ruled in 2009 that Hale wasn’t protected by shield laws, but she’s appealed that ruling over the past two years. But, in this recent ruling by New Jersey’s Supreme Court, the court ruled Hale is not protected by shield law but didn’t necessarily state if she is a journalist.
The NJ Star-Ledger reported that the ruling explained Hale wasn’t granted shield privileges because she doesn’t have any connection to “news media.” A message board didn’t cut it. As Reuters reported, the ruling stated that it doesn’t think that “the legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards.”
Too Much Media’s lawyer, Joel Kreizman, explained he wants to ask Hale who her sources are because “we believe she was put up to this by somebody else,” Reuters reported.
Narrow Shield Law Ruling Overturned
According to the Star-Ledger, in a 2009 appellate court ruling on Hale’s case, the panel “set very specific criteria for journalists to qualify for the protection.” This Supreme Court ruling, however , “shot down the appeals court’s criteria,” and instead created the standard of a “connection to news media,” if the report’s purpose is related to news and “if the information was obtained during professional newsgathering activities.”
In a December 2010 blog post, University of Texas-Austin’s Knight Center for Journalism in the Americas blog noted that the Society of Professional Journalists and Reporters Committee for Freedom of the Press both signed on to back Hale. In a Dec. 13, 2010 press release, the SPJ said that it joined the amicus brief which “does not support Hale’s claim to qualify as a journalist under the shield law” but does call for the court to not “improperly narrow the definition of a journalist under the statute” as the 2009 appeals court ruling did.
Hale’s Comments on the Ruling
In an interview with StinkyJournalism, Hale commented, “Of course I’m disappointed [with the ruling] because they really failed to address the issue directly” and didn’t say if Hale is a journalist. She questioned how or if bloggers are protected under the shield law given the court’s call for shield law to protect those affiliated with a news outlet.
“What I wish they would have done is say we’re not clear on these things and we’re going to refer it back to the trial court to figure it out,” Hale commented. Hale noted that “there’s never been a trial” and questioned why she wasn’t able to qualify for the shield law.
Hale said that she will have to turn over the identity of her sources to the court if asked and that she has kept her sources in the loop about her case “so they can take whatever actions they need to protect themselves.”
“I’ve pretty much said I’ve lost and if I’m asked in a deposition, I’m going to have to follow the court order,” Hale said.
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Hale commented that she’s “had an uphill battle from the very beginning” because her credibility was called into question over a post she wrote about Too Much Media being “organized in New Jersey.” She said she didn’t know that TMM lived in New Jersey and just that the business was organized there. “Am I the only one in America that’s smart enough to know where a company files its articles of incorporation isn’t where they operate?” Hale questioned.
Hale says she’s not sure what the next step and timeline is for this case, but that she thinks she will be deposed. “I will assume they’ll drop their lawsuit against me and go after who my sources are,” Hale said.
Hale got involved in this case to begin with because of the investigation she began after being cyber-flashed. But, she told iMediaEthics she won’t ever finish that report because of this lawsuit.
“You know, the disappointing part of this is I’ve invested so much time and so much money into the investigation I did and the research I did, and now I can never write my piece because I don’t ever want to disclose all the sources that I have.” But, she said the case probably won’t affect her blogging.
Hale was able to defend herself in this case, which has cost about $300,000, because of her personal insurance, she said. Otherwise, “I would not have been able to afford to” fight the charges in court, Hale said.
Too Much Media’s Attorney
iMediaEThics spoke with Too Much Media’s attorney, Joel Kreizman, by phone last week. Kreizman commented that regarding the ruling, “I obviously have to agree with it. We always said that message boards were not media under the New Jersey statute, and that’s what the court essentially held.”
According to Kreizman, the next step in this case is a “case management conference scheduled” for later this month. He added that “we’re ready to go back to court and start the case” because the issue of whether Hale gets shield law protection has lasted more than two years.
Kreizman also commented on some of the inaccurate or imprecise reporting on this case. According to Kreizman, “some of the headlines that came out, it was obvious that journalists did not read the decision” because the court didn’t rule that all bloggers aren’t journalists — just that Hale’s comments on a message board were not considered to be media and journalism related.
For example, some reports on the ruling concluded that the ruled extended to bloggers. As Kreizman stated, the ruling applied to Hale within the context of New Jersey law. It doesn’t say bloggers aren’t sometimes permitted the shield law protections. As the syllabus of the ruling reads: “The [Shield Law] statute maintains 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.”
As an example of accurate reporting on the case, Kreizman pointed to the Moderate Voice’s Kathy Gill’s post, which criticized some of the “sloppy reporting” on Hale’s case. Specifically, she called out CBS News’ report on the Supreme Court ruling. The headline for that story stated: “N.J. : No shield protection for bloggers.” However, as that story notes, the court’s ruling just ruled that “New Jersey’s shield law for journalists does not extend to online message boards.”
Read the ruling on Reporters Committee for Freedom of the Press here.