• by Wendy Davis  @wendyndavis, June 7, 2011

A woman who authored message board posts slamming the software company Too Much Media is not a "journalist" for purposes of the state's shield law, the New Jersey Supreme Court ruled on Tuesday.  

The ruling means that the posts' author, life coach Shellee Hale of Washington State, can be ordered to divulge the sources for her online remarks about Too Much Media, a company that is suing Hale for defamation.

New Jersey's broad reporter shield law allows journalists to protect the identity of their confidential sources, even when the reporters are sued for defamation. But the law only applies if the journalists are writing for publication in traditional media -- like newspapers, magazines, radio or television -- or other similar "electronic means of disseminating news."

The New Jersey Supreme Court ruled that Hale doesn't qualify for the shield law because online message boards are not similar to the types of news organizations named in the statute. "We ... do not believe that the legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards," the judges wrote in a 46-page opinion.

"The popularity of the Internet has resulted in millions of bloggers who have no connection to traditional media," the court ruled. "Any of them, as well as anyone with a Facebook account, could try to assert the privilege."

The lawsuit grew out of allegedly defamatory posts by Hale on Oprano, a self-described "Wall Street Journal for the online adult entertainment industry." In one post, Hale suggested that Too Much Media engaged in "fraudulent, unethical and illegal uses of technology," according to court documents.

Too Much Media sued Hale for defamation, and in the course of litigation, attempted to discover who provided information to Hale. She argued that the state's shield law gave her the right to protect her sources' identities.

A trial judge and appellate court ruled against Hale. The appellate judges said that Hale did not qualify as a journalist because she was not affiliated with any news organizations and had not "demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest."

Although the New Jersey Supreme Court ruled against Hale, the judges specifically rejected the idea that journalists had to "follow certain norms" to claim the shield law's privilege. "Maintaining particular credentials or adhering to professional standards of journalism -- like disclosing conflicts of interest or note taking -- is also not required by the shield law," the court wrote.

Instead, the judges ruled, the critical issue in Hale's case was that she made the posts on a message board. "In essence, message boards are little more than forums for conversation," the court wrote. "Defendant's comments on an online message board would resemble a pamphlet full of unfiltered, unscreened letters to the editor submitted for publication -- or, in modern-day terms, unedited, unscreened comments posted by readers on NJ.com."

At the same time, the court ruled that individual bloggers could qualify for the shield law, but only after an assessment of whether the bloggers were connected to news media, acted with the purpose of gathering or disseminating news, and obtained the information through professional news-gathering.