A Union County judge is deciding what it takes for a blogger to qualify for the protection of New Jersey’s broad news-gathering privilege.
Assignment Judge Karen Cassidy agreed Thursday to hold a plenary hearing on whether a subpoena served on Tina Renna, who has blogged about possible misuse of county generators after Hurricane Sandy, should be quashed.
Cassidy agreed to the state’s request for a hearing based on the Supreme Court’s seminal 2011 ruling that distinguished between writers with ties to traditional news media  and “self-appointed journalists or entities with little track record” — the latter of which “require more scrutiny."
In Too Much Media v. Hale, 206 N.J. 209, the court held bloggers might qualify for the privilege but that defendant Shellee Hale’s postings on a message board were more akin to reader comments on newspaper websites than to news reports.
Renna’s attorney, Bruce Rosen, argued that she is very different from Hale, citing a track record of published articles with information about Union County government and that had “all the indicia of a news story.”
Renna, president of the nonprofit Union County Watchdog Association, has been writing about Union County politics since 2005 on the group’s County Watchers blog, www.unioncountywatchdog.org.
The blog looks like a news site and Renna’s articles read like news stories, said Rosen, of McCusker Anselmi Rosen & Carvelli in Florham Park.
Renna claims that she spends 10 to 20 hours a week as a reporter and editor and that she and others have published at least 1,000 entries.
On Dec. 12, she posted an article entitled "Generatorgate,” which said Union County Prosecutor Theodore Romankow was looking into allegations that county employees took county generators to power their homes during post-Sandy outages and criticized how the investigation was being conducted.
She said she expected Romankow to produce “another flim flam report” that might name “perhaps as little as two employees.” She claimed she had names of 16 employees, as well as witnesses, and was prepared to give the list to the state “if our corruption busting former U.S. Attorney turned governor Chris Christie is willing to take a stand against this local political corruption.”
A follow-up article on Dec. 16 featured a letter from a “concerned citizen,” who said he saw a large generator between two Kenilworth Boulevard homes belonging to a town councilman and a county police officer.  An accompanying photo purported to show the generator, which bore a county logo.
An investigator from the prosecutor’s office wrote to Renna on Dec. 17 and Dec. 27, referring to the Dec. 12 piece and asking her to call him to set up a meeting to discuss the matter.  Renna failed to respond and was served with a subpoena on Jan. 4 to appear before a grand jury on Jan. 11.
Renna moved to quash based on the newsperson’s privilege, which protects newspapers, magazines, radio and television stations and other means of disseminating news that are “similar” to traditional news media.
Those claiming the privilege must make a prima facie showing that they have a connection with the news media, that they have a purpose to gather or disseminate news and that the subpoenaed materials were obtained in the ordinary course of professional news-gathering.
Courts have applied the law to a nonfiction book about Donald Trump and emergency room film footage for a reality-based television show — finding a sufficient nexus to the “news media” — but not to a public relations firm hired to manage adverse publicity.
Rosen said the prosecutor’s argument that Renna did not qualify for the privilege because of her attacks on the Democrats who govern Union County was misplaced. He noted that The New York Times’ Maureen Dowd and The Star-Ledger’s Paul Mulshine regularly take sides in their columns.
Rosen also disputed the suggestion that Renna waived the privilege by offering to give the state her list, saying he was not sure she understood the law when she did so.
Assistant Union County Prosecutor Robert Vanderstreet clarified that he was seeking only names not sources, but he painted Renna as an advocate rather than a reporter and contended that although no one factor vitiated the privilege, in the aggregate they did.
He argued that journalistic standards, though not dispositive, should provide “some guidance,” alleging that Renna admitted plagiarizing an article, didn’t contact opponents to respond to criticism, used profanity and didn’t run corrections. He  referred to videos given to Cassidy that showed Renna making “off color remarks” to county freeholders, adding he didn’t think traditional news media “lambaste the government” at public meetings.
Cassidy found sufficient doubt on whether the privilege applied that a hearing is required.
Noting that the privilege does not apply to those who conceal from sources that they are reporters, she expressed an interest in learning how the disclosures were given to Renna and about conversations with others that might have constituted a waiver.
That led Rosen to object that reporters cannot be asked how they got their information.
Cassidy set a Feb. 28 date for the hearing and gave both sides until Feb. 12 to submit briefs on its scope.
“Anytime you put a reporter on the stand, there’s a danger you will accidentally pierce the privilege that you’re there to protect,” Rosen says. “We’re going to do everything we can to make sure that this doesn’t become a fishing expedition.”
Vanderstreet says he is pleased with Cassidy’s decision and glad for the opportunity to have a hearing, but declines further comment.
The case is In re January 11, 2013 Subpoena by Grand Jury of Union County, Prosecutor’s Docket No. 13-0001.