Message Board Poster Cannot Claim Protection of New Jersey’s Shield Law

Published On June 21, 2011 | By Jake Sommer | Litigation
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The New Jersey Supreme Court weighed in on the ever evolving issue of when a blogger becomes a “journalist” that can claim protection under state law providing “newsperson’s privilege” in Too Much Media, LLC v. Shellee Hale, (A-7-10)(066074). Hale was the victim of a “cyber flashing” incident during which hackers exposed themselves to her during “life-coaching” classes they had signed up for with her. As a result of that incident, Hale began looking into issues related to technology and abuse of women. She created a website called “Pornafia,” an online “news magazine and bulletin board” covering criminal activity related to the adult entertainment industry. The Pornafia magazine never launched, but Hale reported news and made numerous comments on a related Oprano message board.

The Plaintiff, Too Much Media, LLC (“TMM”) develops NATS software, which a number of adult sites use to monitor referrals and determine commissions due. Hale investigated a security breach of this software that exposed personal information of customers that had signed up for pornographic websites. As a result of this investigation, Hale posted a number of messages on Oprano and stated that TMM had violated New Jersey law, profited from the breach, and had threatened one of her confidential sources. TMM sued Hale alleging defamation and false light.

TMM then sought to depose Hale, who then moved for a protective order claiming that she was entitled to protection under New Jersey’s media shield law, N.J.S.A. §§ 2A:84A-21 et seq., to protect her confidential source. The court first looked at the Pornafia site, which the Plaintiff admitted was “never fully launched.” Slip Op. at 6. Instead, it appears that Hale reported most of her findings on the Oprano message boards. Id. Hale claimed that she had, prior to writing the story/message board post in question spoken with the Washington State Attorney General’s office, her Congressman, attended adult industry trade shows, interviewed people in the industry, collected information from porn web blogs, and reviewed information in the mainstream press and on industry-related message boards. Id. at 6-7. She also claimed that in writing the story about the breach of NATS that she had interviewed a confidential source, who provided information and also claimed that his or her life had been threatened. Id. at 7-8.

The Court began its analysis by noting that the case is “about the Shield Law, not freedom of speech” because the Defendant certainly was allowed to post her thoughts on the Oprano message board. Id. The Defendant and amici sought to have the court interpret the Shield Law using an “intent test” which would have examined why Hale investigated and then wrote her message posts. The Court rejected that test because it “does not comport with the precise language of the Shield Law” and the First Amendment does not require such a test. In so holding, the Court noted that the New Jersey Shield Law provides broader protection than the first amendment, because there is “no limiting language” and it provides an absolute privilege to reporters that can claim its protections rather than the more limited rights reporters have under the First Amendment. Id. at 20.

The Court then turned to the text of the Shield Law, focusing not on what it protects, but whom. In doing so, the Court avoided the issue of whether the message board post itself was a “news story” and focused solely on the person that authored it. The N.J. Shield Law only protects: “a person engaged on, engaged in, connected with, or employed by news media for the purpose of … disseminating news for the general public…” “News media” under the statute is defined as “newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.” N.J.S.A. 2A:84A-21a(a). The ACLU argued that the “or” in the scope provision should be read such that a person need not be employed by “news media” in order to enjoy the law’s protections. The Court rejected that reading, finding that other provisions in the statute make clear that a person must be employed by news media at the time they gather information. For instance, news must be “procured by or obtained while such required relationship is in effect.”

The Court then turned to what constitutes news media—and in doing so, stated that expansions of the definition in the past had been limited. Id. at 29. In addressing Pornafia and Oprano, it stated that “message boards are little more than forums for conversation” and “[i]n the context of news media, posts and comments on message boards can be compared to letters to the editor. But message-board posts are actually one step removed from letters that are printed in a newspaper because letters are first reviewed and approved for publication by an editor or employee whose thought processes would be covered by the privilege.” Id. at 31.

Nonetheless, the Court’s reasoning provides some hope for online sites by distinguishing message boards from “online news magazines” like those at issue in O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72, 77 (Cal. Ct. App. 2006) or sites like the Drudge Report which collect links and now and then contain breaking news articles, Blumenthal v. Drudge, 992 F. Supp. 44, 47 (D.D.C. 1998). Indeed, it appears that the Defendant’s concession that she had never launched the “news magazine” portion of Pornafia doomed her case. As the Court stated, “Whether Pornafia might some day fall within the Shield Law cannot affect the analysis in this case, though, because defendant did not use Pornafia in the manner she had announced.”

That ruling, however, begs the question: What if Hale had launched the Pornafia news site with this message board post? What if she had, instead of posting the material on the message board, had posted it, on the front page of the website and solicited and received advertisements to place on the front page? What if she had a twitter account that, like Drudge, often provided links to readers with occasional commentary and breaking news of her own and linked to this story on a message board or something as simple as a site like pastebin.com?

If it is possible to claim the privilege at “launch” of a “new media” publication, it seems odd that the N.J. Shield Law’s application would turn on where information was posted. While it seems like the Court reached the right result here intuitively—message board posts by message board users with dreams of someday launching a news site are generally not what one might think of as “reporting,” but instead comments by members of the community—the ruling highlights the problems in drawing lines as to when a newly-created site becomes “news media” under state Shield Laws.

The analysis is even more perplexing because of the Court’s tacit approval elsewhere in the opinion of the application of the Shield Law to the writer of a nonfiction book. Examining the two decisions together, it appears that under New Jersey law, it is possible that a first time author who provides information on a message board prior to publication of her book, perhaps to seek research assistance or more sources, is in danger of losing the protection of the Shield Law merely because of the means by which she disseminated the material. For now, at least in New Jersey, this decision counsels toward posting material on one’s own website or an established blog that provides a number of other news entries, rather than providing the results of one’s research in an informal setting like a message board or anywhere that “ordinary” members of the public may post. It also counsels that reporters or authors who are not well-established and have not yet sold their books or articles to publishers or news media should be careful about the statements they make and what they report in these forums when seeking assistance on stories—lest they too lose the Shield Law’s protections.

About The Author

Jacob Sommer's practice focuses on legal issues related to Internet-based services and social networking, with a focus on protecting client's rights in litigation or government investigations involving the Copyright Act, Lanham Act, Digital Millennium Copyright Act ("DMCA"), Electronic Communications Privacy Act (“ECPA”), the Wiretap and Communication Acts, CAN-SPAM, FISA and federal and state laws governing Internet gambling. He also helps social networks, search engines, e-mail providers, ISPs and other clients fulfill their compliance obligations pertaining to the discovery and disclosure of customer and subscriber information.

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