Blogger Sued For Defamation Can't Invoke Shield Law, Says N.J. Judge

There was "little evidence (other than her own self-serving statement)" that she "actually intended to disseminate anything newsworthy to the public." Also, Hale's failure to contact Too Much Media to get its side of the story "certainly does not suggest the kind of journalistic objectivity and credibility that courts have found to qualify for the protections of the Shield Law," wrote Locascio.

He analogized Hale's postings to the written public comments that often appear below articles published on Web sites of newspapers and magazines, noting such comments require no fact-checking or editorial review and there is "so little accountability" that it is nearly impossible to determine the identity of the poster.

"To extend the newsperson's privilege to such posters would mean anyone with an e-mail address, with no connection to any legitimate news publication, could post anything on the Internet and hide behind the Shield Law's protection," which was not what the Legislature intended when it passed the statute, the judge said.

Locascio also held that as a nonjournalist, Hale would not enjoy another protection afforded the media in defamation cases: the requirement that a plaintiff prove actual malice, rather than mere negligence, as a basis for liability.

In addition, he denied Hale's motion to dismiss based on the alleged absence of pecuniary damages, saying Too Much Media and its principals could recover for harm to reputation and standing in the community, personal humiliation and mental anguish.

Too Much Media's attorney, Joel Kreizman of Evans Osborne & Kreizman in Ocean, N.J., says the Internet is just a means of communication and should not change the substantive law of defamation. "There's a lot of the Wild West out there, but that doesn't make it right."

Hale's lawyer, Jeffrey Pollock of Fox Rothschild in Princeton, N.J., was traveling and could not be reached for comment but Kreizman says Pollock has indicated he will appeal.

New Jersey Press Association general counsel Thomas Cafferty, of Scarinci Hollenbeck in Lyndhurst, N.J., says evolving technology has made it more difficult to draw the line between who is and is not a journalist but he has "no great difficulty" with where Locascio drew that line. If the shield law applies to all bloggers, the criteria are so watered down that it applies to everyone, in his view.

Jonathan Hart, a lawyer for the Online News Association, says "The important thing to keep in mind about Judge Locascio's opinion is that it does not say that bloggers aren't entitled to the protections of New Jersey's shield law. It says only that this defendant on the peculiar facts before the court wasn't entitled to invoke the protections of the shield law." Hart is with Dow Lohnes in Washington, D.C.

Locascio has submitted his opinion for publication.