TRENTON, N.J.—The New Jersey Supreme Court has agreed to review a case involving Too Much Media (TMM), the software company that produces the NATS affiliate tracking program, and Shellee Hale, a Washington state resident and mother of five who was denied the protection of New Jersey’s reporter shield law—most recently in 2010, when a New Jersey appeals court ruled in TMM’s favor—regarding posts she made in 2007 on the Oprano message board that were critical of TMM.
According to Law.com, “The court agreed on Sept. 8 to hear Hale's interlocutory appeal, ‘limited only to those issues relating to the New Jersey Shield Law and the First Amendment of the United States Constitution.’”
The case itself extends back to 2008, when TMM sued Hale in New Jersey state court for comments she made on Oprano regarding alleged security flaws in NATS. Superior Court Judge J.S.C. Locuascio ruled in TMM’s favor in July 2009, finding that neither she nor her sources were entitled to any protection under the state’s shield law. Hale appealed, and in April of this year lost again. In September, she appealed that ruling
AVN spoke with Hale’s attorney, Jeffrey Pollock, who while admitting that the issues before the state high court have nothing to do with the adult entertainment industry per se, said that they are important nonetheless, as questions regarding who is or is not a legitimate journalist in a borderless online environment remain unanswered.
“I have not yet begun to fight,” Pollock said at the outset, adding, “I say that tongue in cheek but it’s actually true. I told Shellee Hale on the very first day that she was likely to lose in Monmouth County, because it’s one of my least favorite counties to litigate in, and I told her I was not certain the appellate division would get it right, but I am certain that the New Jersey Supreme Court will get it right. I predicted that on the very first day that I spoke with her.”
When asked if he thought the fact that the court took the case bodes well for him, Pollock said, “I think it bodes very well for the following reasons. There are two core questions here, and the fact that it has to do with Too Much Media and porn in the background is really kind of a side show. The core question is if someone is writing on the internet, and cites a confidential source, are they entitled to invoke the shield law to protect the source upon which they are relying. And that obviously becomes critical if you get sued for defamation, libel and slander; do you have to cough up that source.
“In New Jersey’s traditional law, if I were a print media I could write something in the Star-Ledger and say something defamatory, and then if someone says, ‘Well, Jeff, that’s knowingly false and therefore you’re libel,’ I could say, ‘Yes, but I have a source that said this to me that I believe to be true, and I thought it was a credible source,” and now I have protected myself under the shield law, and in that sense I am now libel- and slander-proof, because I have a credible source.
“As you know,” he continued, “the newspapers, the traditional print media, are dying, and increasingly are going to the internet. So the real question becomes, if Jimmy Olsen is not reporting for the Daily Planet but is now reporting for Pornafia.com, is he just as protected? My answer is yes, it should make absolutely no difference, and the New Jersey has yet to address that question.
“One of the big issues here is that the shield law is a state law, so when the ruling comes out it will only be a guidepost, because there are only 33 states that have shield laws; the other 17 don’t. And each of the shield laws is somewhat different. In New York, for example, you actually have to show that you derive an income. In New Jersey, you do not. So the difference in distinctions may get a little tricky and important.
“The second important question is if Shellee has a confidential source, is she able to then say, ‘I am asserting the right of anonymous speech, the right of confidentiality.’ And here’s the problem: In New Jersey there was a big article last week—‘Median Pay for Police Officers is $98,000’—and people are up in arms about it. The problem comes when Jeff Pollack says, ‘Cops make too much money.” I might as well just put on my car a sign that says ‘just please ticket me.’ But if instead it says, ‘Angry voter in Long Valley says cops make too much,’ the question becomes if the cops can hunt me down. And the answer under our law is no, it’s protected speech. My identity is protected speech.
“So here’s the problem. Assume I sign on as Angry Voter, and they say they want to know who Angry Voter is; if I have to say that Jeffrey Pollack is Angry Voter, and please protect my anonymity, I’ve just lost the very thing I was trying to protect. So the two key questions are whether she can invoke the shield law and right of confidentiality of the source. I think the court is likely to say that the appellate division got it wrong with respect to revising and rewriting the standard. The question you ask, which is the $64,000 question, which is, assuming I’m right, does Shellee get the benefit of it, that’s where it will come down heavily to oral arguments.”
Beyond the question of Hale’s rights, said Pollock, the more far-reaching question on the limits of anonymous speech in a world of location-neutral Huffington Posts that publish the words of paid journalists, guest bloggers and anonymous commenters, all of whom are now searchable on likewise location-neutral search engines, is in play.
“The right of anonymous speech is before the court,” he said. “There have been a handful of courts that have looked at it, and they have pretty much split on the issue. The court here does have squarely before it both the question of anonymous speech and also the issue of whether a blogger can invoke the shield law, and I know that when the Supreme Court of New Jersey takes a case, it does not take it lightly, especially when it is an interlocutory appeal like this one; they’re going to read the papers and will be thoroughly prepared. The case also will probably be videocast, which is a good thing, because it’s an important case.”
AVN also spoke with TMM attorney Joel Kreizman, who said that despite the fact that it will be reviewed by the state high court, the case still comes down to whether or not Shellee Hale is a legitimate member of the media.
“I’m pretty sure the reason [the court] took it is because issues have been raised as to who is and who is not to be considered media,” Kreizman said. “And also under what circumstances, even if you are media, whether you are covered under the shield law. One of my arguments is that even if Shellee Hale could possible be considered a member of the media—and I think that’s a real stretch—but even if she were a reporter, if she defamed people on message boards, then any privileges under the shield law should be limited to news-gathering activities. A message board is a conversation, just an online conversation, and that’s what her [2007 Oprano] posts were. She’s been called a blogger, but she’s not a blogger. She was just participating in online conversations.”
When asked about the larger issue in play, Kreizman conceded that looking at those is precisely what the Supreme Court does. “The essential issue here is who and who is not covered under the shield law. I don’t question the fact that if we’re talking about an internet-based daily newspaper, that a reporter for that newspaper would be covered by the shield law. But Shellee Hale’s attorney takes the position that all she has to do is to say, ‘I am a reporter and therefore I am covered by the shield law,’ and I have a couple of responses to that.
“First of all,” he continued, “she has been shown to have no credibility. She lied in her certification to the court and the trial judge found her to not be a credible person, so why would we take what she says as fact?”
When asked about the thus-far shielded sources that presumably support the claims Hale posted online, Kreizman said, “We don’t know what she’s shielded. She can’t be believed, so what do we know? We don’t know. All I know is my client had no contact with her before her posts. In other words, she was not a customer and had no relationship with them, and yet suddenly she starts making these wild accusations about them.”
Kreizman said he expects the case to be heard relatively quickly, by sometime in the fall.