N.J. Blogger Shield Law Case

The New Jersey court decision denying shield law coverage for blogger Shellee Hale is getting a lot of attention in the blogosphere, but if you dig just below the surface you'll find its not actually a blogger case, but is a more garden-variety message board commenter case. Consequently, its hard to expect a court to expand the shield law to cover a commenter, even if they happen also to be a blogger. Nor should bloggers want this case to go up on appeal because its not at all certain that it would be flipped.

According to Mary Ann Spoto in the Star-Ledger article, http://bit.ly/DEO9N, the lawsuit involved posts Ms. Hale made on a message board. The court apparently analogized Ms. Hale's comments to those that appear at the end of an online article rather than actual reporting and I think that's a better analogy than to a blog post.

There is a wide range of reactions, none of which point out what I see as the crucial distinction between a message board post and a blog. TechDirt focused on what it viewed as the judge's lack of understanding about the Internet, http://bit.ly/PIqaG; while on law.com's LegalBlogWatch, Carolyn Elefant commented: "It seemed as if Hale filed irresponsible comments and invoked the shield law to defend against a defamation claim. It did not seem from the description that she was operating as a journalist under any sense of the word." http://bit.ly/1HX7L. Law and More, http://bit.ly/JBIbh, described the decision as one reflecting the the need for the law to catch up with the technology. Wendy Post in the Daily Online Examiner commented that the case should be appealed to "fix the ruling and make sure that news reporting is news reporting." http://bit.ly/IREjG.

My take on this (based on 12 years as a t.v. reporter and now 21 years as a lawyer who stays in touch with defamation issues) is that this really isn't reporting. An online comment to an article, like a message board posting, is usually brief and without citation to any independent facts. Where is the reporting in that? It seems that proponents of shield law coverage for bloggers are focusing more on Ms. Hale's status as a blogger,whether or not the posts at issue occurred in a blog. I'm not arguing that bloggers aren't journalists; in many situations these days they do act as reporters and one need only look at dailykos, talking points memo, or more locally horsesass.com, to see real reporting going on. But you also don't have to look too deep in the message boards to see that what's happening there is more commentary and opinion than actual reporting.

Bad facts often make bad law and I'm not sure that bloggers want this case to go beyond the trial court level. Right now, its not precedential for anyone but the parties. But take this up to an appellate court with these facts and a reported opinion, even by an intermediate appeals court, might not come out the way bloggers want. As any good appellate lawyer will tell you the best way to win on appeal is to represent the respondent, i.e. the party that isn't bringing the appeal.