Two recent cases highlight tension in applying shield law to new media

From the Summer 2011 issue of The News Media & The Law, page 26.

Recent developments in New Jersey and Hawaii have sparked debate about who should qualify for the protections of state shield laws and the complications that emerge when trying to extend the reporters privilege to online or independent journalists.

In June, the New Jersey Supreme Court ruled in Too Much Media v. Hale that a person who posted comments on an online message board did not qualify for the state’s shield law.

The ruling clarified that online journalists who write for publications that are similar to newspapers can invoke the statute’s protections and threw out a series of requirements an intermediate appellate court said were necessary to qualify for the privilege.

In Hawaii, alternative weekly newspaper MauiTime sought to use the state’s shield law to quash a subpoena for the subscriber information of all commenters who left comments on a story on the publication’s website during a 24-hour period.

Police sought information about a commenter who threatened a law enforcement officer, though the subpoena was withdrawn before the case went to court.

Both cases highlight the challenges of applying statutes written to protect traditional news media when evolving technology has enabled more people to work as journalists.

New Jersey extends privilege to online journalists

After the Too Much Media decision, some reports focused on the result, reporting that the court ruled that the law did not protect bloggers. “N.J.: No shield protection for bloggers,” said a headline from CBS News’ techt@lk blog. A headline from Reuters read: “New Jersey court denies blogger shield protection.”

But the court’s decision did not create a blanket rule that bloggers cannot qualify for the shield law’s protections because it recognized that certain electronic journalists qualify, said Tom Cafferty, attorney for the New Jersey Press Association, which filed a friend-of-the-court brief in the Too Much Media case.

Instead, the decision recognized that online commenters who post on message boards are similar to individuals who write letters to the editor, a group of people who historically have not received protection from the shield law.

Too Much Media filed a defamation suit against Shellee Hale after she posted a series of critical comments about Too Much Media and the company’s leaders on an Internet message board.

In a deposition as part of the lawsuit, the plaintiffs asked for the names of Hale’s sources. Hale sought to invoke the shield law to prevent her from revealing her sources.

The court ruled that Hale did not qualify for the shield law because the law requires those seeking its protection to have some connection to a publication — online or otherwise — that is similar to traditional media. The message board where Hale posted was not similar to a newspaper or magazine, the court ruled.

The decision also threw out parts of an intermediate appellate court decision that would have required those seeking the shield law’s protections to show, among other characteristics, that they adhere to professional journalistic standards or have credentials from traditional media.

And, if the decision was narrow in its definition of a journalist, that was because the actual text of the statute limits who can seek the privilege to individuals working for publications that are “similar” to newspapers and other forms of traditional media, Cafferty said.

The court seemed to indicate as much in its opinion in which it said that, although “the Shield Law does not limit its application to traditional news sources, it specifically requires that other means of disseminating news be ‘similar’ to newspapers, magazines, and the like.”

“What the court was doing here was not writing on a blank slate to decide who is a journalist,” Cafferty said. “It’s not the court’s role to redraft the legislation.”

But for Jonathan Askin, an associate professor at Brooklyn Law School specializing in technology and communication law, the court did not provide any guidance for how to interpret an outdated law in a rapidly changing media environment.

“It doesn’t really lay any foundation for how we evolve the conception of the journalist in the 21st century,” he said.

While it might be appealing to ask state lawmakers to craft a different law that would bring the privilege more in line with digital journalism, such a law is not the answer, Askin said.

“I don’t trust the legislature to do it properly,” he said. “I think the trick is to come up with a process that can evolve with changes in the media landscape.”

One change might be to allow courts to presume that individuals invoking the shield law qualify for the privilege. The opposing party would then have to prove that the shield law does not apply.

In New Jersey, the current practice is just the opposite, as a journalist must show the court that he or she qualifies for the privilege.

“The default shouldn’t be that posters to online message boards are not protected,” Askin said.

Subpoena for online commenter’s information

When police came to MauiTime’s office in May with a subpoena for the Internet addresses of all online commenters who left comments on a story during a 24-hour period, the paper’s editor sought to use Hawaii’s shield law to quash it.

Believing he was not obligated to turn over the information identifying the commenters because of the state’s shield law, Editor Tommy Russo wrote a letter to readers in which he promised to fight the subpoena and protect the anonymous commenter.

“I believe the Hawaii media shield law, which was recently extended by the state Legislature and protects journalists from being forced to reveal sources and unpublished information, may apply in this case,” Russo said.

The subpoena came after Russo attempted to film police officers on the scene during a filming of the reality show “Dog the Bounty Hunter,” according to MauiTime.

According to Russo’s account, an officer struck him when he attempted to film the officer and the film shoot. Russo later posted his account of what transpired on MauiTime’s website, where commenters discussed the incident and the police department.

One commenter threatened the officer in the video, saying “he needs a bullet when he walks out the door.”

Officers showed up at the MauiTime office a month later with the subpoena, which prompted Russo to invoke the state’s shield law. The police later withdrew the subpoena.

Jeffrey Portnoy, a media lawyer in Hawaii, said he was glad the subpoena was withdrawn because it could have jeopardized Hawaii’s shield law.

The state had recently passed a two-year extension of the law, which includes protections for online journalists reporting on matters of public interest. The governor signed the bill after some hesitation, Portnoy said.

At the same time, a judicial committee continues to examine the evidentiary issues surrounding the privilege and may ultimately recommend repealing the law.

“Our law is one of the most liberal in its extension to shield bloggers,” Portnoy said. “Any attempt to extend it further to online commenters could have created some significant issues with the governor.”

Extending shield laws to cover anyone who writes online

Portnoy and Cafferty, the attorney for the New Jersey Press Association, said they worry about extending shield law protections to online commenters because doing so could invite blowback from lawmakers.

“We can’t operate in a system where everybody who posts anything on the Internet is a journalist,” Cafferty said. “If everyone is a journalist, and everybody has the privilege, does anybody really believe the Legislature is going to stand for that?”

“There are lots of legislators in lots of places who have been attacked verbally by anonymous commenters,” Portnoy said. “When you get before them and try to get protection for non-traditional journalists, there’s significant pushback.”

In addition to reluctance by legislators who may not enjoy being the target of anonymous online comments, there could be significant consequences if anyone who writes a comment online could invoke a state’s shield law.

“The privilege can’t apply to everyone and anyone who writes anything,” Cafferty said. “Then nobody in New Jersey has an obligation to testify.”

If the practical effect of a shield law allows virtually anyone to use the privilege, there could be calls to significantly scale back or eliminate such laws, Portnoy said.

“I think politically, if not legally, trying to extend the shield law to a housewife or house husband who reads a story and tries to post a response is futile,” he said.

The end result could hurt all journalists, regardless of whether they report for newspapers or online publications, Cafferty said.

Askin, the Brooklyn Law School professor, said he thinks the fear of losing shield law protections is valid. However, the diffuse nature of online journalists and bloggers makes it harder for those individuals to advocate that they deserve the same protections as more traditional media.

“I think we need to form a trade association who will advocate on behalf of our legislative interests,” he said.