Hale Appeals Superior Court Loss in N.J. Blogger Lawsuit

FREEHOLD, N.J.—As expected, Shellee Hale is appealing the July decision by Superior Court Judge Louis Locascio in which the Washington state resident and mother of five was denied the protection of New Jersey’s reporter shield law for critical blog postings she made in 2008.

Hale asserted journalistic cover when she refused to name her sources during a slander lawsuit brought against her by Too Much Media in early 2009. The Freehold-based software company had sued Hale over derogatory comments she made about the company on a chat board regarding alleged flaws in its NATS affiliate software product.

According to FindLaw’s Kevin Fayle, “Hale got involved in the discussion on a website in which she accused the company that made the software, Too Much Media, of committing fraud and warned that the heads of the company would threaten the life of anyone who reported on the details of the vulnerability.”

“Company principles John Albright and Charles Berrebbi said the postings, which included allegations they had threatened Hale's life, amount to slander against them and their firm. They want Hale to reveal her sources and pay punitive damages for harming the company's reputation,” reported NJ.com in an April article.

The July decision by Locascio was not unexpected by New Jersey court watchers. Thomas Cafferty, New Jersey Press Association counsel, told The Star Ledger that he “was not surprised by Locascio's ruling because New Jersey's shield law specifically applies to those affiliated with the news media.”

"Even though our courts have liberally construed the shield law, it clearly was not intended to apply to any person communicating to another person," the newspaper quoted Cafferty as saying. "To say that means everyone is protected by the privilege."

While the Locascio ruling may have been the “right call,” FindLaw's Fayle worries about the larger implications of a decision based on a narrowly tailored law.

“Bloggers shouldn't have to prove that they were part of some newspaper or magazine to benefit from the shield, though,” he wrote in July. “Just because a blogger doesn't work for The New York Times doesn't mean that they aren't capable of some truly groundbreaking investigative journalism. The danger with this decision is that judges in future cases might see it as a blanket rule that bloggers do not qualify for the shield, regardless of the nature of their work.”

Locascio retired in July, as scheduled, and Judge Daniel Waldman declined a request by Pollock to reconsider the ruling, leading to the current appeal, which will surely by watched closely by bloggers in New Jersey and elsewhere.