Too Much Media, LLC v. Hale: Blogger Status Fails to Provide Journalistic Protection under N.J. Shield Law

Digest Commentary First Amendment

Too Much Media, LLC v. Hale, Case No. MON-L-2736-08, (N.J. Super. Ct. Law Div. June 30, 2009) Slip Opinion

The Monmouth County Superior Court of New Jersey held that the Defendant, blogger Shellee Hale, was not entitled to the protections of a newsperson under New Jersey's Shield Law. Although Hale claimed that her posts on an Internet message board were intended to inform the public and spur debate on Too Much Media's alleged activities, Judge Locascio focused on Hale's credibility and whether her posting resembled traditional news media. The court noted that although the Shield Law in New Jersey was "one of the nation's broadest," Hale "presented no credible evidence . . . that she ever worked for any ‘newspapers, magazines, press associations, news agencies or wire services, radio or television.'" In reaching this conclusion, Judge Locascio gave no weight to Hale's being a blogger or her claims of having published articles in a newspaper and trade journal because she failed to name the publications and lied in her certification to the court, which Judge Locasio labeled a "sham affidavit."

The Citizen Media Law Project provides an overview of the case. The New Jersey Law Journal also summarizes the case and includes comments from Too Much Media attorney, Joel Kreizman.

The Defendant, Hale, who operated websites offering her life coaching services and maintained a blog, had no background in journalism or connection with any journalist organization. She claimed that she had been investigating criminal activity in the online adult entertainment industry and started a website in 2007 to publish the results of her investigation.  She never posted anything on her site, but communicated her views on porn industry message boards. The plaintiffs, Too Much Media, LLC, manufacture NATS, software used by websites to manage pay-per-click advertising commissions. After news reports that hackers had broken into the NATS database and obtained information about subscribers to various adult websites, Hale posted allegedly defamatory statements on the website Oprano (the self-proclaimed "Wall Street Journal of Porn") about Too Much Media and its principals.

Despite Hale's claims that her posting was intended to inform the public of Too Much Media's improper business actions, the court ruled that her postings were not similar enough to a traditional news media outlet to allow protection under the Shield Law. The Shield Law protects newspersons from having to disclose their sources in legal proceedings. The court stated that message board postings require no fact-checking or poster credentials. The court noted that extending the protections provided to newspersons to bloggers like Hale "would mean anyone with an email address, with no connection to any legitimate news publication, could post anything on the internet and hide behind the Shield Law's protections."

This case represents the first time in New Jersey that a blogger has attempted to shield herself under the Shield Law to avoid revealing her sources after making allegedly defamatory comments on an Internet message board. While it seems unlikely that this holding will deny protection to all bloggers, the Daily Record suggests that bloggers who do not have significant ties to news organizations will not be protected by the New Jersey Shield Law. On the other hand, Jonathan Hart stated to the New Jersey Law Journal that the holding of this case is limited to its specific facts and will not extend to other bloggers.