N.J. Supremes Deny Shellee Hale Shield Law Protection

TRENTON, N.J.—In a unanimous decision, the Supreme Court of New Jersey today ruled against Shellee Hale and for Too Much Media (TMM) in a case that extends back to April 2009, when the New Jersey-based software company sued Hale for slander for a series of posts she made on the Oprano message board in 2007 that alleged that a security breach exposed TMM customers' private information to hackers. TMM has consistently denied the breach took place.

TMM claimed that her allegations were false and defamatory, and demanded that she reveal her sources for her stories. Hale refused, claiming that she was protected from doing so by New Jersey’s journalist shield law. Each step of the way, however, Hale has lost in court, including today, when the court, following Feb. 8 oral arguments, considered “whether the newsperson’s privilege extends to a self-described journalist who posted comments on an Internet message board.”

Rather than assess the philosophical underpinning of whether Hale, who at the time of her postings was not affiliated with or employed by a news organization, is entitled to the protection of New Jersey’s shield law, the Court strove to determine whether the state legislature intended to “cloak with absolute privilege and whether the reach of the Shield Law extends to the use of message boards like Oprano.”

The answer as far as the jurists are concerned is that it did not.

“The Shield Law expressly extends the privilege to a person engaged in, connected with, or employed by ‘news media,’ which 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,” wrote Chief Justice Stuart Rabner. “The statute defines ‘news’ as ‘any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect.’ Finally, the Shield Law excludes from protection ‘any situation in which a reporter intentionally conceals from the source the fact that he is a reporter.’”

Online message boards, the Court  concluded, are not the functional equivalent of the sorts of media outlets intended for protection under the shield law.

“The Court does not believe that the Legislature intended to provide everyone who posts a comment on an Internet message board an absolute privilege,” Rabner wrote. “As a result, even under the most liberal interpretation of the statute, Hale’s use of a message board to post her comments is not covered under the Shield Law. Whether Hale’s own Pornafia website might some day fall within the Shield Law cannot affect the analysis in this case because Hale did not use Pornafia in the manner she had announced. She never launched the planned news magazine portion of the site, and all of her comments relevant to this litigation appeared exclusively on Oprano.”

In the end the court held, “Although New Jersey’s Shield Law allows news reporters to protect the confidentiality of sources and information gathered through their work, online message boards are not similar to the types of news entities listed in the statute; therefore, defendant Shellee Hale was not entitled to claim the privilege in this defamation case that is grounded in comments she posted on an Internet message board.” The case will now be sent back to the trial court “for further proceedings consistent with this opinion.”

According to Reuters, Hale’s lawyer, Jeffrey Pollack, said the court "has taken a sharp turn against the nontraditional journalist and people writing on the web,” adding that New Jersey can no longer pride itself on having the broadest shield law in the nation.

TMM’s lawyer, Joel Kreitzman expressed relief that the case, which took a two year time out while Hale argued her shield law defense, could get back on track.

“He said the shield issue was significant because it could have prevented him from asking Hale questions about the identity of her sources,” reported Reuters.

"We believe she was put up to this by somebody else," he said.

A copy of the decision can be accessed here.