Arguments were heard on whether Shellee Hale, a blogger in the porn industry, is protected by N.J.'s law
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Overall view of the N.J. Supreme Court in Trenton in this Jan. 4 file photo. TRENTON — In a courtroom on the eighth floor of the Richard J. Hughes Justice Complex in Trenton today, everyone agreed the internet has changed the face of news gathering and dissemination.
But they couldn’t agree on whether a blogger who wrote online about a New Jersey company involved in the pornography industry should have the same protections as working journalists in keeping their sources confidential.
In a case that could have far-reaching effects on the media, the state Supreme Court heard arguments on whether Shellee Hale, a blogger from Washington state, is protected by New Jersey’s so-called shield law, in her writings about Freehold-based Too Much Media Inc.
Hale, a former Microsoft employee and a private investigator, contends she was working as a journalist when she set out in 2008 to investigate corruption in the pornography industry. She created a website, Pornafia, to report her findings but did not publish any articles because, she claims, she was threatened by TMM principals.
TMM, which helps online adult entertainment companies track sales, sued Hale for defamation in 2008. As part of her defense, Hale would have to reveal a confidential source. Although she was not working for a traditional news organization at the time, Hale insists she is a journalist and should not have to reveal her source. A trial court judge ruled in 2009 that Hale was not a journalist and therefore not afforded those protections and an in an appellate decision last year affirming that ruling, that court for the first time sought to establish a clearer definition of a journalist.
"This is unregulated territory," Justice Helen Hoens said.
Much of the nearly two-hour argument in Trenton today circled back to a 1977 state statute, which the justices and attorneys said is outdated and does not address new forms of media on the Internet.
But the justices appeared reticent about carving out a new definition of a journalist.
"We have to be clear what we’re deciding here," Justice Barry Albin said. He said the issue before the courts is ‘‘who the shield law pertains to — that’s all.’’
Jeffrey Pollock, Hale’s attorney, said she meets all the criteria of a journalist in New Jersey.
"What she intended to do and what she started to do on Pornafia, that was protected," Pollock told the court.
Bruce Rosen, a Florham Park attorney representing the New Jersey Press Association, said the issue became a broader discussion about the definition of a journalist because of procedural errors on the trial level.
TMM’s attorney, Joel Kreizman, claimed Hale fabricated the purpose of the Pornafia website after she was sued so that she could obtain the protection.
Ronald Chen, vice dean of Rutgers Law School arguing on behalf of the American Civil Liberties Union, contends it’s the news gathering and dissemination process — not a person’s affiliation with a news organization — that defines whether a person is a journalist.
But Albin questioned whether a person posting reckless writings on the social network site Facebook is protected if he first announces he is a reporter conducting an investigation.
‘‘Do you really think the legislation intended the shield law to protect everyone?’’ Albin asked.
MaryAnn Spoto: mspoto@starledger.com
Previous coverage:
• Blogger in online porn company lawsuit wants case to go to N.J. Supreme Court
• N.J. court rules blogger is not protected under shield law in porn company defamation case
• N.J. appeals court hears arguments over whether blogger is protected by shield laws
• Legal dispute continues between blogger and Freehold software provider