A Contrarian View: Maybe This Blogger Wasn't Acting As a Journalist At the Time

A New Jersey court decision has determined that a writer in Washington State named Shellee Hale is not protected by New Jersey’s shield law protecting journalists from being forced to reveal their sources because… wait for it… the court says she’s not a journalist but merely a blogger.

Some folks are saying the ruling is the death of online journalism and an effort to cement journalistic power with the sick and dying mainstream media. As a former newshound and right-of-center web reporter/editor, I’m not so sure I would ring the alarm bells just yet.

Let’s look at a few salient things involving the Hale case. Based on the available information, Hale found herself in hot water with a New Jersey software company for an entry she wrote in the comment section of a blog regarding the company, which subsequently sued her for defamation. During the course of the trial, the company also wanted to know the source of the information in Hale’s comment, which she refused to disclose.

Set aside for a moment the refusal, the blogging, her past writing for other media outlets and so forth and take a look at something that seems largely overlooked in this. According to the coverage of this event that I’ve been able to find, Hale wasn’t reporting on anything at the time of her ill-fated musings. She was posting a comment about a subject on a blog. I couldn’t even find anything indicating this was part of a research effort for a news story. It looks like she just put up something in a comment section and that was that.

Face it folks, the information that appears in the comment section of a blog can sometimes be well-reasoned, accurate and informative, and other times amount to little more than graffiti. If the information from the comment post had been included in a larger piece of reporting, my gut tells me we wouldn’t be having this discussion. News media publish unattributed, erroneous information that harms reputations all the time but we don’t see a parade of guys and gals with inky fingers or TV anchor hair flooding the courthouse to stand as a defendant in a tort.

Let’s look at a hypothetical parallel. Suppose a star reporter with the Washington Post went to Trip Advisor and posted a horrible review about a hotel at which he had been a guest. Suppose his review of said hotel contained unproved, unattributed and possibly defamatory information about the hotel. Does that mean this guy, in this case, would be protected by the same First Amendment that protects the work that appears under his WaPo byline? My money is on ‘no.’

Recovering journalists like me know how long of a legal leash reporters get in pursuit and publication of news. Good reporters are like really smart dogs tied up in the yard; they know exactly how far they can run before that leash yanks ’em back by the throat. But that doesn’t mean that a guy who writes news for a living can enjoy the same First Amendment rights for everything else he writes. The leash just isn’t that long.

And good thing too. My favorite assessment of the American media is pretty simple: Everything I hear about or read about in the news is true, except for the stuff I actually know something about.

Break it down to its natural end point and it means nothing is right. I’m not saying that all media are wrong all the time on all the material they publish, but suppose the same standards of accuracy and transparency we see in news reporting were applied to, say, a commercial bank or brokerage house. Carl Levin would be saying a whole lot more dirty words at congressional hearings, that’s for sure.

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Of course banks and brokerages are held to a higher standard of truthfulness and transparency, and thank God for that. If banks were run with the same devotion to accuracy as newspapers, we’d have an economic crisis that would dwarf the recent Great Recession.

Reporters should have and often do have broad latitude on protecting their sources. Sometimes, they don’t. Judith Miller, a former New York Times reporter, went to jail in 2005 for refusing to disclose a source in the Valerie Plame episode, but that’s an incredibly rare thing to have happen.

The language of the decision might be a little clunky but absent anything to show Ms. Hale was working on a news story at the time of her blog comment, I’m siding with the court on this one.