• by Wendy Davis , Staff Writer @wendyndavis, July 8, 2009

All states except one, Wyoming, have some form of a shield law that allows journalists to protect their confidential sources. Many were passed before the Internet era, but some state courts have recently said the policies apply to bloggers as well as to mainstream media, provided the bloggers are engaged in newsgathering and dissemination.

But a judge in New Jersey has just made the questionable decision that blogger Shellee Hale isn't covered by that state's reporter's shield law, which allows journalists to protect their confidential sources.

The judge ruled that Hale shouldn't be considered a journalist because she hadn't shown she was affiliated with a "legitimate" media outlet, according to Law.com. While Hale said she had written articles that had been published in trade journals and at least one newspaper, the judge found that she hadn't proven that. Therefore, the judge ruled, Hale can be forced to tell a company suing her for libel the names of people who served as sources for a post she made on the message boards at Oprano -- a site that covers the porn industry.

The ruling seems confused on a number of levels. New Jersey law specifically protects anyone "engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public."

Given that the law itself talks about all news media, it's puzzling why the judge felt it necessary to attempt to define "legitimate" media -- especially when other courts have already rejected that approach. In one of the earliest cases about this issue, an appeals court in California specifically rejected that approach. In that case, decided in 2006, the court said that three bloggers who wrote about Apple were entitled to preserve their sources' anonymity. "The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here," the California appellate court wrote. "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news."

That distinction makes even less sense now than three years ago, given the increasing blurring of the lines between mainstream media and other forms of journalism. Just look at the recent TV news coverage of the upheaval in Iran, which drew extensively on videos and accounts created by users.

If authoring posts on a message board is considered a form of journalism, then it shouldn't matter whether the author is employed by a mainstream media company, a freelancer, or maintains a private blog. In fact, New Jersey courts have said that even part-time stringers are protected, according to the Reporters Committee for Freedom of the Press.

Hale is reportedly planning to appeal. Hopefully the New Jersey appellate courts will fix this ruling and make it clear that news reporting is news reporting.