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To foster a free and independent press, most states protect the confidentiality of a journalist’s sources through “shield” laws. When these statutes were drafted decades ago, they had “journalists” of traditional media outlets in mind. But in the information age, is a blogger a “journalist”?
The New Jersey State Supreme Court recently heard arguments on this question with respect to blogger Shellee Hale, who had posted comments to an online forum accusing software company Too Much Media of violating New Jersey’s Identity Theft Protection Act. In response, Too Much Media sued Hale for defamation and libel. When Too Much Media began scheduling depositions, Hale moved for a protective order, asserting that she was a journalist entitled to the protections of the state shield act. Both courts below disagreed, for Hale neither “exhibited none of the recognized qualities or characteristics traditionally associated with the news process” nor “demonstrated an established connection or affiliation with any news entity.”
Not all courts, though, have been unwilling to extend journalistic privilege to bloggers. For instance, in 2006 a California state appeals court recognized protection of source confidentiality for online journalists in Apple v. Does. Amicus curae in the case stressed that the “press” should not be ”limited to the professional, corporate media,” a view opposing that of the New Jersey lower courts in the Hale case.
Should this new class of news-disseminators be afforded the journalistic privilege previously reserved to reporters affiliated with corporate news organizations? A blanket exclusion of online journalists would likely not serve the underlying purposes of journalistic privilege, freedom of the press. However, as one commentator on the Hale case noted, it may be difficult to draw a meaningful line between legitimate online journalism and routine social network postings. As news dissemination continues to shift from traditional media outlets to online mechanisms, it will become increasingly important to determine how to draw this line.
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