Judge Says Blogs Not Legitimate News Source; No Shield Protections
from the seems-to-leave-a-lot-of-leeway dept
Back in May we wrote about a lawsuit questioning whether or not a blogger could use journalism shield laws to protect a source who sent her info she used for a blog post. The company the info was about is suing her for slander (which is odd, since slander is usually spoken, while libel is written). The woman, Shellee Hale tried to claim that she was protected under New Jersey’s shield law, which allows a journalist to protect sources. In writing about this case originally, we pointed out that the judge in question clearly did not know much about the internet, and via his questions seemed positively perplexed that anyone would blog at all: “Why would a guy put all this stuff on a blog? Does he have nothing better to do?”
Thus, it should come as no surprise that the judge has now ruled that Hale is not protected by shield laws because she has “no connection to any legitimate news publication.” This is troubling for a variety of reasons. First, it leaves open entirely to interpretation what exactly is a “legitimate news publication.” The judge seems to think it only applies to old school media, saying: “Even though our courts have liberally construed the shield law, it clearly was not intended to apply to any person communicating to another person.” Sure, but that doesn’t mean that an individual who posts something in the pursuit of reporting isn’t media as well. It looks like Hale will appeal this decision, and hopefully other courts will recognize that you don’t have to work for a big media organization to be a reporter any more.
Filed Under: bloggers, journalists, shellee hale
Comments on “Judge Says Blogs Not Legitimate News Source; No Shield Protections”
This is why onerous laws and regulations are always at a disadvantage to freedom and individual choice–they are reliant upon the intelligence, foresight, and fairness of the entities in charge. Unfortunately, increased experience often seems to beget an exaggerated self-perception of wisdom, and since it is the nature of people to resist change and that which they do not understand, society must constantly wait for the powers that be to die off for radical new concepts and ideas to be fully accepted. I like to think that my generation will be more accepting of change in the future given the incredible technological growth of the era, but I feel that our paradigms will become fixed for the worse as well.
There may be logical reasons for denying a blog engaged in acts of journalism the same protections afforded a contemporary news organization beyond the inherent merit of shield laws(although I doubt it), but the judge fails to state any. He merely reveals that he doesn’t understand the transformation of news-reporting and -communicating, yet apparently felt it wiser to stifle the blog than enable it. Why deny a self-employed individual the same protections afforded to a newspaper-employed one with the same motives and goals, except to protect the incumbent at the expense of the public?
Re: Re:
Or, perhaps, he just focused on the individual (despite numerous references to the pioneering nature of the case and the repercussions of his precedent) and denied her argument without considering the big picture. But why would he not emphasize this if so? He apparently injected his personal interpretation of the NJ law based on the intent of its application at the time of legislation, as opposed to the basis for passing it in the first place or its impact on society.
Re: Re:
because the “professional journalists” the majority therof anyway are government mouthpieces asking their government masters like hardballs news anchor: “can i talk about this?”. Since the bloggers aren’t government mouthpieces that merely write what people say verbatim without calling them on their potential bs is why this judge is probably ruling in this manner( or at least on the majority of blogs i’ve read anyway that are political in nature). e.g. like iran’s president doesn’t even control the military the grand ayatollah does it doesn’t matter in the slightest if he is an anti-semite or not unless israel strikes at him the last I heard he’s as popular as George W. bush. Not to mention according to a certain article I read from a forgotten website to have weapons grade uranium you have to enrich it over %90 iran %2.5 at most.
Re: Understand?
There is more than that this judge does not understand. The availability of credible evidence to police. They sometimes solve crimes from internet information. How long will it be until facts are posted as opinions or imagined phenomenon? If sources cannot be protected then post the information as psychically obtained.
Questions
“The company the info was about is suing her for slander (which is odd, since slander is usually spoken, while libel is written)”
What is the status of any investigation into whether or not the information provided in the blog was true/in question/knowingly false? It seems to me that there are two troubling aspects of this suit:
First, the idea that a potential whistle-blower cannot choose to whom he will confide in because of how the JUDGE views the confidee (as opposed to the source) is going to silence other whistle-blowers. Woudn’t that be kind of like a judge ruling that a scientologist minister couldn’t receive privelaged confession because that judge didn’t consider Scientology a “legitimate” religion?
Secondly, leaving open the interpretation as to what constitutes a legitimate news source IS a bad thing (as opposed to being self-proclaimed, say on the publication or website), but what’s worse is the likely solution you’ll see offered by someone in government: press/newsource registration. I can see someone suggesting that all news distributors seeking to be legitimate needing a “license” to operate from the government. How’s THAT for controlling information?
Would the judge have ruled any differently if you replaced Blog with newspaper? What if rather than running a blog, she was attempting to market a new “traditional” newspaper. Would that not be “legitimate”? And if not, I think we just showed the glaring hole in this judgment.
Blogging is not journalism, and never will be. Newspapers and news shows may use blogs as part of their reporting, but any blog per se is not journalistic.
Get out of your bathrobes and go get real jobs before the bottom falls out of pay-per click ads.
Re: Re:
The Palins need another donation for their legal relief fund. Run along now.
Re: Re:
Any instance of information being passed on from one to many is reporting. It doesn’t matter who is doing the reporting, or what the medium is.
You can practice good journalism and not be paid for it. Amateurs are often better than professionals because they are passionate about it not just trying to get the next paycheck.
But blogging isn’t journalism by default. I have a blog in which I write opinion and opinion only. It is more of a personal journal that I let other people read than any kind of reporting.
Our courts should protect whistle-blowers no matter who hears the whistle when it is blown.
Re: Re: Re:
Yo, StupidOne…
Do you miss the irony that you state that blogging isn’t journalism by default, and then go on to back this up by saying that your blog is really more of a personal “journal”?
Your “journaling” is journalism – By definition, not by default.
CBMHB
Re: Re: Re: Re:
Are you being tongue-in-cheek? He says that journalistic blogs are a subset of all blogs, and then mentions that his own blog is an instance of a non-journalistic blog. There’s no contradiction. You also make an equivocation fallacy as there are different meanings of journal.
Maybe you’re just messing around, but it’s hard to tell.
Re: Re: Re:2 Re:
I’m always being a little tongue-in-cheek, sometimes tongue stuck straight out and doing a raspberry…but that shouldn’t eclipse my point.
Keep in mind that I generally agree with most of what he said. I can’t find where TheStupidOne called journalistic blogs a subset of all blogs, but logic tells us that would be so, nonetheless. However, my point is that we don’t need to qualify blogs as “journalistic” or not.
I was especially in agreement with his opening statement –
“Any instance of information being passed on from one to many is reporting. It doesn’t matter who is doing the reporting, or what the medium is.” –
Right there is the crux of my belief. If blogging is “reporting” and “reporting” is to be considered “journalism” – Then by definition, blogging can be, and is journalism. If A=B, and B=C, then A=C.
What I took exception to was the statement that blogging isn’t journalism by default. I guess ultimately it comes down to your definition of journalism, of course. But I found a little humor in his choice of words. To paraphrase: “It’s not journalism, this thing that I do…It’s just me writing in my journal…”
I certainly take your point about equivocation, but if I had been trying to make a point along a similar line as his, I would have avoided the unfortunate phrasing, as it just reminds us from where these concepts originate, and in a small way it *is* at very least counter intuitive, if not contradictory.
We need to face the fact that the old definitions are no longer holding water. I can “report” on anything – The color of my shite for god’s sake – and as long as *someone* out there cares and reads up on the latest developments on my gastro-intestinal-news blog – it is, like it or not, journalism. I suspect you will *not* like it, but that doesn’t change the reality of the situation.
Similarly, I’m perplexed at why so many think that if you blog your “opinion” on things, that makes it any less “journalism”… For crying out loud, FOXNEWS makes a small, (or not so small) fortune spewing opinion pieces 24-7, and no one dares suggest they aren’t journalists.
As TheStupidOne so clearly put it:
“Any instance of information being passed on from one to many is reporting. It doesn’t matter who is doing the reporting, or what the medium is.”
Amen Brother.
CBMHB
Re: Re:
And what is your reasoning as to why blogs are not journalistic? I would propose that such outlets as Fox are so clearly biased as to remove any sort of ‘journalism’ they might offer.
Re: You're right
Most journalists are far too overworked to do a good job of reporting the facts and prone to just go after easy stories. Not only that, but they are also woefully underpaid, making them vulnerable to all kinds of manipulations.
Bloggers are hugely biased and often lax in fact checking, but at least they are very up-front about that sort of thing. Unlike, say, the Washington Post, which is now selling ‘access’ (http://www.politico.com/news/stories/0709/24441.html). Oh, the irony, that was a _blog_ reporting about that…
Chris.
Re: Re: You're right
Everything is for sale, apparently.
Re: Re:
No one is arguing that “any blog per se” is journalism.
On the other hand, journalism is not some sacred realm inhabited only by those who went to J-school or were hired by businesses for the purposes of reporting.
The failure to distinguish between journalism and other writing is exactly what tripped up the judge in this mistaken ruling.
Re: Re: Re:
Exactly.
I’m reminded of a friend who started a small paper so that he could get “press” credentials. He did this so he could get backstage at concerts and political events.
Was he doing “legitimate” reporting (whatever that means)? Probably not. Was he doing *any* reporting? Definitely. Was he a “Journalist” by the local newspaper’s narrow definition? Definitely not. Was he a Journalist? Probably! (and this is an example of someone who really just did it for the chicks – imagine today’s “driven” blogger)
Who gets to draw the line on “Legitimate” reporting or journalism? This is a new era, and the old rules SIMPLY do not apply.
The smallest blog can scoop the biggest story before ANY newspapers or major cable outlets get wind of it. AND, the biggest news outlet can blather on about their OPINION on a news story without adding ANYTHING NEW to the story.
Any criticism one can level at “bloggers”, one can level at “big news”
“News” is changing. The DEFINITION of “reporter” and “journalist” is changing. Get used to it.
CBMHB
Re: Re:
Id venture to guess that I make more money in my bathrobe with that “blog” as a secondary income than many “professional journalists” do at the office.
When was the last time your blog was mentioned in the Wall Street Journal or Wired magazine?
Its a BULLETIN BOARD!
I want that guy's job
How do these judges get appointed?
I google’d his name, something about a statewide class action lawsuit against a TV reality show, and something about a golf cart personal injury settlement case.
Life must be rough in da Jersey hood.
Here’s his rankings. I love the comments.
http://www.therobingroom.com/newjersey/Judge.aspx?ID=5022#comments
Blog vs. journalism
I’d say that, in a perfect world, all “journalism” would be accompanied by an ethical reponsibility for a trade (this concept is not unknown – I am an engineer, and my wife is an accountant, and both fields can know very powerful sanctions for violations that are, while legal, unethical). In this case, the ethics of journalism require substantiation of any testimony from parties prior to reporting, and a general verification of facts when possible, or a qualification of testimony when verification is not available or possible (i.e. letting people know that the statement is unsubstantiated). I have a feeling that the judge, being a traditionalist, felt that shielding goes hand-in-hand with ethical responsibility, and is something that is at least, on the surface, expected from the traditional media (see the fall of Dan Rather for an example).
That being said, if tabloids – the kings of unsubstantiated “news” – are protected by shield laws, then why would a blogger not also be protected?
(Its kind of funny – I was actually initially in favor of the judge’s ruling, but as I continued to work through the logic in my statement, I found my own opinion changing).
Re: Blog vs. journalism
I’d say that, in a perfect world, all “journalism” would be accompanied by an ethical reponsibility for a trade (this concept is not unknown – I am an engineer, and my wife is an accountant, and both fields can know very powerful sanctions for violations that are, while legal, unethical).
There are licensing requirements in those two professions. Journalism is quite different in that regard.
In this case, the ethics of journalism require substantiation of any testimony from parties prior to reporting, and a general verification of facts when possible, or a qualification of testimony when verification is not available or possible (i.e. letting people know that the statement is unsubstantiated).
While ethics are debatable (depending upon whose “ethics” are used), there are no such legal requirements for journalists. Considering that this is about a legal case, that distinction is important.
I have a feeling that the judge, being a traditionalist, felt…
Yet another case of a judge applying his personal “feelings” instead of the law.
That being said, if tabloids – the kings of unsubstantiated “news” – are protected by shield laws, then why would a blogger not also be protected?
Exactly. Tabloids are a good example of the lack of legal standards for the journalism profession.
Blogs are not news, they are written opinion peices.
Anyone can “blog”, for example on myspace.com.
If anyone can blog, why in the world would you consider it news?
We need to define legit news sources via the internet.
And yes I understand newspapers are not the only source of news.
Re: Blogs are not news
Sarah Palin resigned as Governor of Alaska.
If I put that on my blog, does it stop being news and become my opinion?
CBMHB
Re: Re:
“newspapers are not the only source of news”
and they are not necessarily legit.
I don’t think you do justice to the article in question. According to the piece, Hale claimed the company had threatened her life and violated state identity theft laws. Most people and/or business entities do not take such disparagment lightly, for good reasons. Further. these accusations were not made on her blog, but in comments on adult websites.
It seems to me that Hale doesn’t like the business the company is in (software for XXX websites) or has a beef with the company itself and used the shield law defense when she got called on the carpet. I’m not sure how she can refuse to name her sources in regard to her claim that her life was threatened. Regardless, if we’re going to assign journalism status to the comments field of an adult messageboard, then darn near anyone who has ever posted anything online is a member of the press. I don’t think the spirit of the law in question was ever meant to be that broad.
Again, reading the judge’s comments, I think he is endeavoring to determine the appropriate balance between true journalism and wanton rants and he has little precedent to help guide him. He may not be the most computer savvy person in the country, but I didn’t get the impression that he is some dunderheaded old fogey who don’t understand them newfangled computer thingies and ruled willy-nilly.
Re: Re:
I didn’t get the impression that he is some dunderheaded old fogey who don’t understand them newfangled computer thingies and ruled willy-nilly.
I wouldn’t let him off that easily either. I think he’s more likely just corrupt.
journalism without trees
If introducing a new technology significantly changes or invalidates your law, it was a poorly written law to begin with. That isn’t to say it should be written even more broadly; rather, laws should be platform-independent.
As to the story at hand, a blogger has much more editorial freedom to pursue stories than any old-media “journalist”. An editor-in-chief can ban-hammer his reporters’ stories because of political pressure but that action just becomes another post for the blogger. The blogger is investigative reporter, editorial staff, and media conglomerate all in one. They can focus on the in-depth reports and hyper-local interest that old media no longer adequately covers.
Just because no trees were harmed in publishing the story doesn’t make it any less journalism, or any less deserving of journalists’ shield laws.
Shield Laws are Ridiculous
Anonymous sources, well-placed officials, yadda yadda yadda.
Shield Laws are ridiculous. We should all have the right to confront our accusers.
The dilemna raised by “traditional media” vs. bloggers just shows how unworkable it is.
Re: Shield Laws are Ridiculous
Shield Laws are ridiculous. We should all have the right to confront our accusers.
Yes, if you’re being accused of a crime in a court of law. That isn’t the case here.
Re: Shield Laws are Ridiculous
…We should all have the right to confront our accusers.
In a court of law, you do.
In the media, you do not, primarily because those you call “accusers” are not accusers, they are “reporters” of what they know (ideally) to be true. In our system, you do not necessarily have the right to confront reporters.
If they report that records show you haven’t been paying your taxes, for example…Then when the IRS comes after you, you *will* have the right to confront your accuser (the IRS). The fact that they came after you because of a tip from a shielded source has no bearing on your right to confront your accusers, because it is the IRS who will be doing the accusing.
See?
CBMHB
Re: Re: Shield Laws are Ridiculous
“If they report that records show you haven’t been paying your taxes, for example…Then when the IRS comes after you, you *will* have the right to confront your accuser (the IRS). The fact that they came after you because of a tip from a shielded source has no bearing on your right to confront your accusers, because it is the IRS who will be doing the accusing.”
If a crime is committed and a witness identifies you for the crime, the DA arrests and tries you. So, according to your logic, the DA is the only one involved and you have no right to face the witness, whose accusation began the entire flawed investigation.
Your analogy to the IRS is flawed. Read the constitution. In fact, the shield law itself violates your 6th amendment rights “…to be confronted with witnesses against him…”.
But, this is constitutional dribble. We don’t follow it anymore.
Reporting hearsay doesn’t make it reporting facts. How do we know she has any ‘facts’ and it isn’t all hearsay? what are her professional credentials? Listening to a man rant with no education about a subject doesn’t mean he knows the details of that subject. It seems the door is opening for unsubstantiated rumor [journalist have a code of fact checking] to replace responsibility.
of course, we are in a society that denies personal responsibility in our actions, so where is the surprise?
Re: Re: Re: Shield Laws are Ridiculous
So, according to your logic, the DA is the only one involved and you have no right to face the witness, whose accusation began the entire flawed investigation.
Heh, no, it doesn’t.
If the DA puts that witness on the stand in court to testify against you, then you will indeed get the chance to face them. But if the DA doesn’t call any witnesses then you won’t and the DA won’t have a case either.
Now the DA can’t just himself instead testify about what some witness told him because that kind of hearsay isn’t allowed in court. Understand?
Re: Re: Re:2 Shield Laws are Ridiculous
Sorry folks, I thought this was clear, but perhaps not. Let me rephrase it:
Let’s say that you own a corporation of some kind, and haven’t been paying your taxes properly. It’s a huge corporation, with thousands of employees. One of those employees decides to blow the whistle.
She talks to a reporter about your tax situation under the assumption of anonymity. The reporter respects this and publishes an article claiming that “an anonymous source within the organization indicates that there are serious irregularities with the accounting in regards to State and Federal taxes.”
The IRS, and DA read this article and start their own investigation. The investigation uncovers evidence of tax evasion, and you are prosecuted.
This is perfectly legal, and you have no “right” to confront the employee who’s comments tipped off the authorities via the reporter’s article.
Clear?
CBMHB
How true. One does not need to be on ABC, NBC, or CBS Radio to be “in the media”.
If I own an Internet radio station, which I do, then I AM the media. This “judge”, or government stooge, is full of s***.
Citizen Journalism is about the only legitimate news source left. Between rampant plagiarism and outright fake articles from the likes of Time Magazine and New York Times, its pretty difficult to trust even the “major” news organizations. We need something that is disconnected from the money. That, is most probably , citizens who blog.
No shield protections for bloggers.
The difference between legitimate news publishers and a blogger is that professional reporters have an editor to keep them on a short leash. News paper editors try to prevent fraudulent or abusive stories from being published.
Bloggers can publish anything whether or not their writings are true. On the other hand if a blogger publishes a story that can be confirmed as true by other sources then the blogger should be shielded.
Consider a situation where you the reader of this comment have a disagreement with someone. They publish a report without any supporting evidence, that you are a pervert, on their blog, to retaliate against you. Should that blogger be protected as a legitimate news source?
Re: No shield protections for bloggers.
The difference between legitimate news publishers and a blogger is that professional reporters have an editor to keep them on a short leash.
I take it then that you’ve never seen a supermarket tabloid. You seem to be speaking with an abundance of ignorance.
Bloggers can publish anything whether or not their writings are true.
So can newspapers. And they can both be sued for libel.
On the other hand if a blogger publishes a story that can be confirmed as true by other sources then the blogger should be shielded.
You don’t seem to even know who the shield law protects (more ignorance). It shields the identity of *sources*, not the blogger from libel.
Consider a situation blah blah blah …
More drivel demonstrating ignorance of the shield law.
A blog is a blog is a blog.
This blog is a perfect example why blogs aren’t news…just circular urination contest.
Re: A blog is a blog is a blog.
I shit on that comment
Evidence
For those complaining about what the judge doesn’t know or failed to realize — judges may only consider the evidence before them. If evidence of this or that isn’t there, it isn’t considered, regardless of what you think and regardless of what a judge knows.
Want something considered? Put the fact into evidence. Then it may be considered and realized. Courts MAY take judicial notice of inter alia, commonly known facts. But there’s no such thing as commonly known facts involving something like the internet because new gizmos that come out on a daily basis make whatever was known yesterday totally outdated today, thereby rendering substantial changes to various other stuff thru the domino effect.
VRP
Doesn't pass constitutional muster
If a blogger wasn’t a “legitimate” journalist, then neither were the pamphleteers of the American colonies, whom the Bill of Rights was explicitly designed to protect.
from today's bergen record (local NJ paper)
Differentiating bloggers
Wednesday, July 8, 2009
NorthJersey.com
A court case in Monmouth County has some interesting ramifications for citizen journalism. Specifically, the court found that the blogger was not covered under the state’s shield law, the law meant to protect journalists from having to reveal their sources.
According to the Associated Press, the judge ruled the posts were nothing more than the rants of a “private person with unexplained motives for her postings” and cannot be given the same protections as information compiled though the process of news gathering. While the defendant may appeal the ruling, if it holds up it will have an impact on what goes on in the Wild West of cyberspace.
Much has to be decided in regards to blogging and other forums of Internet reporting. Think about the local forums on northjersey.com, NJ.Com and others. This paper was minimally involved in the case of one forum poster that started out with identity theft charges and ended up with harassment charges being pressed. That case concerning a number of West Milford residents is still being tried. Other local cases have become infamous as posters learned that their veneer of anonymity can be pierced by someone with the wherewithal and resources. More cases over time will invariably play out.
Going forward, bloggers may find some tough going with reporting especially if they get into something controversial. What many bloggers don’t have is the deep pockets that larger, and well-insured newspapers and other media outlets have. This could impact their ability to report.
But yes the times are a changing. The New Jersey Press Association, for one, is watching these cases and is considering allowing small online news providers to join the NJPA. The caveat is that they have to be reachable, meaning they have a business address and phone number so that they can be held accountable by its readers. What they get is centuries-old experience on keeping out of trouble. Expertise on avoiding libel and other pitfalls in reporting the news will be made available. It may also allow them to gain the “creds” necessary to protect them under the shield law.
It is an interesting time for the news business and sure as shooting what the business will be in 10 years is anybody’s guess.
The judge was right
The Judge made the right decision. It is very clear that Shellee Hale is no blogger or reporter. Google the name Shellee Hale and you will find all kinds of things about her. She claims to be an expert finger pointer 1 moment but turns into an innocent “soccer mom” when she gets caught lying. This lady stole my work years ago. She thinks because she’s rich she is untouchable. I hope that old bag goes down in a humiliating ball of flames.
Re: The judge was right
The Judge made the right decision. It is very clear that Shellee Hale is no blogger or reporter.
I can add some other names to that list of obvious non-reporters:
Rush Limbaugh
Bill O’Reilly
Sean Hannity
Jeff Gannon
Matt Drudge
…
It is so much easier to be on the other side
I am published and I am a member of Society of Professional Journalism, The National Writers Union and I maintain a corporate account with PR Newswire. I am also a wife and a mother, a red cross volunteer, I sit on the board for the Washington Association of Legal Investigators as a licensed PI and was involved in legislation for the PTSA in Washington and there is more which is why you would find a lot in a google search – I don’t live in a socialistic country and have the right to choose what I want to do every day when I wake up.
I may have taken weeks, months and/or years to research and write this story in question and I did not need a license to do so or a degree because legally you don’t have to have one in the country I live in. I don’t think a court can limit the time a person has to investigate a story either or the venue that you can solicit interview subjects.
I believe I made a legitimate speculation in a post about a very public discussion of a federal case and a national news story on a security breach.
I believe the source of a comment I made should be allowed to remain anonymous as we agreed. Now who really won? had I not fought for the privilege on behalf of my source – the source could have sued me for not keeping our agreement – I did the right thing.
My attorney Jeff Pollock raised very valid legal arguments and this is so much bigger than me and I hope it is reversed. I feel like I have let so many people down – NJ is really far from Seattle and it is not easy to leave my family and friends to fight this 3,000 miles from home but I was told I had to so I am.
Shellee
Re: It is so much easier to be on the other side
>I believe I made a legitimate speculation in a post about a very public discussion of a federal case and a national news story on a security breach.I believe the source of a comment I made should be allowed to remain anonymous as we agreed.
Reconsideration
On July 22, 2009 we filed for a reconsideration. Hopefully the new Judge in this case (Lucasio has retired) will consider the legal arguments and facts presented.
You can read the reconsideration here:
http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-07-22-Hale's%20Motion%20for%20Reconsideration.pdf
You made a mistake
Hi,
I’m sorry but you have made a mistake. Jonathan Hart, a lawyer for the Online News Association, says “The important thing to keep in mind about Judge Locascio’s opinion is that it does not say that bloggers aren’t entitled to the protections of New Jersey’s shield law. It says only that this defendant on the peculiar facts before the court wasn’t entitled to invoke the protections of the shield law.” Hart is with Dow Lohnes in Washington, D.C.
I thought you might like to know!