Troubling Precedent: NJ Court Says Bloggers Are Not Journalists

The Garden State has a shield law for journalists, meaning the government cannot force reporters or opinion writers to reveal their sources. There is nothing more vigorously defended among journalists than the right to keep secret one's anonymous sources in service of "the public's right to know." The decades-long secret identity of "Deep Throat" in The Washington Post's Watergate exposés is the standard of that journalistic principle.

But a New Jersey state appellate court last weekruled that a woman named Shellee Hale is not a "real" journalist, but just a blogger, so is not protected by the state's shield law.

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In the words of New Jersey Superior Court Appellate Judge Anthony J. Parrillo:
Simply put, new media should not be confused with news media.

This backward-looking, snobbish decision is troubling for many reasons. Before we get into the upcoming righteous outrage from someone who was a regular member of the "news media" for nearly 20 years — but is now a "new media" journalist — here's some background on the case.

Shellee Hale, who lives in Washington state, wrote in the comment section of a blog that New Jersey-based software company Too Much Media was the victim of a security breach, citing anonymous sources (presumably within the company). Too Much Media acknowledged that the security breach occurred — though it said the exposure of customer information, including credit card details, was brief. Yet the company still sued Hale for defamation and demanded she reveal her source.

As Mike Masnick at TechDirt notes, Hale writes for many blogs, and has also contributed articles to several "mainstream" publications, including The Wall Street Journal and Business Week. Nonetheless, Too Much Media says it wants her sources, and maintains she does not deserve the protections of New Jersey's shield law because she's just a blogger. The trial court agreed with Too Much Media, and New Jersey's highest appellate court upheld that ruling on April 22.

Before we move on, let's note the salacious details of this case as outlined in this Law.com article: Too Much Media is a software company "that provides software chiefly used by Internet pornography providers," and Hale posted her comments at "Oprano.com, a website self-described as 'The Wall Street Journal for the online adult entertainment industry.' "

I'd hate to think those details clouded the decision process of the judges in this case. At any rate, they're irrelevant. This decision impacts all who share their views on the Internet, and Parrillo's decision drips with contempt for mere "bloggers." Some quotes from the decision:

  • "[Hale] exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity."



  • "[Hale had] no connection to any legitimate news publication."



  • "... nor has [Hale] demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest."


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That last one makes me guffaw. It was just bloggers who fact-checked the bogus story that got "real journalism" titan Dan Rather fired from CBS. In fact, bloggers have lately done a lot of excellent and valuable public-service journalism.

It was the blogosphere, not "institutional journalism," that smoked out Obama "Green Czar" Van Jones as a 9/11 Truther, proud communist and all-round radical nut-job. MSM organs like the New York Times and the Washington Post were essentially left to report on his resignation after the fact. The poor, in-the-dark readers of those "legitimate news publications" were left with little details as to why he had to go -- or who he even was.

Same story for former White House Communications Director Anita Dunn. It was the blogosphere that reported the story that Dunn said one of her "favorite" political philosophers was the mass murdering communist Mao Tse-Tung. The organs of "institutional journalism," again, only picked up the story as she was being shown the door.

And then there's Andrew Breitbart, an indispensable one-man truth squad. He has put the lie to the story, pushed by Democrats to the stenographers at "legitimate news publications," that Tea Party protesters in Washington hurled the "n-word" at members of the Congressional Black Caucus as they walked to vote on ObamaCare. Unlike the "institutional journalist" crowd, Breitbart is willing to put his money where his reporting is, offering to donate $100,000 to the United Negro College Fund if anyone can show proof to debunk him. So far, no takers — even among the members of Congress who walked through the crowd with recording devices rolling to catch the Tea Partiers in racist spasms.

No "official" body issued a license to Breitbart, or Michelle Malkin, or Ed Morrissey, or the folks at Politico, or me, or even Dan Rather to practice journalism. Free countries don't have an "official" press. That's the way it should be, and has been throughout the history of America — which benefited from a free press even before the Bill of Rights protected it. (And don't get this old-school, ink-stained wretch started on the idea that journalism is a kind of exalted "calling" like monks hear. "J-School" is the worst thing to ever happen to journalism.)

It is quite disturbing to see a high-level state judge not only putting ultimate faith in an "institutional journalism" class that has time and again failed in its mission to report the unvarnished truth. It is worse that this judicial panel decided on its own what is a "real" journalist worthy of the protections of the First Amendment.

My Heartland Institute colleague Sam Karnick related in an email to me Tuesday that he hopes this case makes it all the way to the U.S Supreme Court. It should. We do not have a truly "free press" in this country when the government — through the myopic opinions of judges — is defining "legitimate" journalism.

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