Not Enough Media?

Forty nine of our fifty states recognize some form of a reporter’s privilege. Wyoming is the only one without some form (figured you’d want to know). Very simply, the privilege protects a reporter from revealing a source. The reason for it is so that people with information feel safe when they provide that information to a reporter. Without it, the flow of information would be affected, because fewer people would risk the consequences of leaking information. There is no federal reporter’s privilege (remember Judith Miller) , but congress is considering whether to adopt some sort of statutory protection. And one of the issues that concerns people is the question of what the heck is a reporter these days anyway? With the proliferation of blogs, Web sites and Facebook Fan pages, it’s not as easy as it used to be to figure this out. And if any Tom, Dick or Harry who sets up a blog can claim a privilege, this could get out of hand. The New Jersey Supreme Court faced the issue recently, and it may have put the brakes on the expansion of the privilege. In the case, a company called Too Much Media came to the attention of an anti-pornography proponent named Shellee Hale. TMM provided a software program for adult entertainment sites that kept track of access to site. Hale had begun the process of creating a Web site called “Pornafia” which she intended to be an online news magazine and bulletin board to expose criminal activity in the adult entertainment world. Hale never actually got Pornafia up and running, but she did comment regularly on various message boards, including Oprano. In several posts, she went after TMM, accusing it of violating New Jersey law. TMM sued Hale for libel and sought to take her deposition. Hale claimed she was a reporter and asserted the New Jersey shield statute. The New Jersey Supreme Court ruled that Hale was not a reporter. Given that she never actually got her site up and running, the only basis for her claiming the status of a reporter was her message board postings. But in the view of the New Jersey Supreme Court, that didn’t cut it. The gist of its holding is set out in paragraph 5 of the holding’s syllabus:

The Court’s decision gives some deference to the traditional media, but in recognizing that Pornafina might some day qualify for protection, it acknowledges that online publications are certainly eligible. It also rejected any “intent” test. Hale may have intended to be a journalist, but she really didn’t function as anything more than someone with a desire to engage in online chats. There is a “you know it when you see it” quality to this decision, but it should be of some comfort to folks that worry about opening a huge can of worms if congress ever does enact a federal shield law.