Attention, bloggers. We should all take a little time to read a New Jersey Supreme Court decision issued this week that found comments posted by an investigator/blogger in an online forum were not protected by the state’s journalists’ shield law.

The case is Too Much Media LLC v Shellee Hale, decided on June 7. That link will take you to the full court decision.

A summary of the decision, prepared by the court clerk, is also available.

The New Jersey Shield Law is cited in the opinion:

Subject to [N.J.R.E. 530], a person 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 or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere.

Further:

“News media” is defined as “newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.”

The decision takes an extended look at the definition of the news media in order to determine where the message board on which allegedly defamatory statements appeared could be considered part of the news media. The question seems to be to what degree was this online forum “similar” to newspapers and the old mainstream media that were covered by an earlier version of the statute.

Here is what seems to be the crux of the court’s decision.

In essence, message boards are little more than forums for conversation. In the context of news media, posts and comments on message boards can be compared to letters to the editor. But message-board posts are actually one step removed from letters that are printed in a newspaper because letters are first reviewed and approved for publication by an editor or employee whose thought processes would be covered by the privilege. See Gastman v. N. Jersey Newspapers Co., 254 N.J.Super. 140, 145 (App. Div. 1992). Similarly, some online media outlets screen comments posted about an article and edit or delete certain posts. By contrast, 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.

Those forums allow people a chance to express their thoughts about matters of interest. But they are not the functional equivalent of the types of news media outlets outlined in the Shield Law. Neither writing a letter to the editor nor posting a comment on an online message board establishes the connection with “news media” required by the statute. N.J.S.A. 2A:84A-21. Therefore, even under the most liberal interpretation of the statute, defendant’s use of a message board to post her comments is not covered under the Shield Law. We do not believe that the Legislature intended to provide everyone who posts a comment on Oprano or a response to an article on NJ.com an absolute reporter’s privilege under the Shield Law. We cannot find support for that proposition in the words of the statute or any other statement of the Legislature’s intent.

The court went on, though, to make clear that the law does not exclude bloggers per se from its coverage. It all depends on whether they are disseminating news in a way similar to more traditional media.

There were disparate reactions to the case.

Writing on the Huffington Post, Jonathan Akers says the opinion will have a chilling effect on future online journalists.

This will serve to chill would-be pioneers in new media from exploring content distribution vehicles that look too dissimilar from 20th century big media news outlets.

The difference between an online message board and a news entity might seem self-evident to current media consumers, particularly those weaned on old, static media outlets like newspapers and television broadcasts. As media evolves and becomes more collaborative, interactive, user-generated, “crowd-sourced” and mutable in real time, however, news media entities might look increasingly more like loosely-curated assemblages of user-generated comments on online message board. It shouldn’t really matter where a journalist posts comments — all that should matter is the intent of the commenter to expect protection as a journalist.

Now that the 21st century individual possesses the tools to be as powerful as a 20th century media empire, the courts should not solely protect media outlets that appear similar to their pre-Internet antecedents. In a world of user-generated content, each reporter must not feel that she needs to be part of a big media stable, but that might be the unintended consequence of the Too Much Media Opinion.

But the Reporters Committee for Freedom of the Press said it would “make it easier for individuals associated with online publications and traditional media to invoke the protections of the state’s shield law.”

The decision is a victory for journalists because it rejected a lower court’s decision requiring individuals to show that they adhere to a number of traditional journalism practices before obtaining the law’s protections, said Bruce Rosen, a New Jersey media lawyer.

The appellate court ruled that, when determining if a party is a journalist, a court should consider a number of factors, including whether the individual had press credentials, fact checked, attempted to contact the other side for comment, and understood professional ethics related to confidential sources and disclosing conflicts of interest.

In scrubbing the lower court’s requirements, the state high court ruled that whether the individual adheres to professional journalism norms is irrelevant.

“Regardless, the statute mandates a connection to ‘news media’ and a purpose to gather or disseminate news; it does not limit the privilege to professional journalists who follow certain norms,” the court said.

The upshot of the ruling means that it should be easier for traditional and online journalists to show a court that the law applies to them, said Rosen, who filed a friend-of-the-court brief in the case on behalf of New Jersey Media Group Inc. and the New Jersey Press Association. The Reporters Committee for Freedom of the Press also filed a friend-of-the-court brief in the case.

“If you collect news and it’s clear you’re connected to a news organization, you’ll be fine,” Rosen said. “If you’re not connected with any news organization and you’re venting online, you may not have those protections.”