A New Jersey Superior Court will decide in a defamation case whether
a Shellee Hale, a woman who posted comments online about the
pornography industry, should have the same protections as working
journalists. Hale, who writes four blogs and has contributed to The Wall Street Journal and Business Week, is seeking protection from disclosing her sources.
Tom Cafferty, counsel to the New Jersey Press Association, suggested in an interview with The Star-Ledger
that her claim to privilege may be dubious and contends that judges
realize they must be careful who gets the protection, because If the
newsperson's shield is extended to everyone who posts items on the
internet, "then everyone is a journalist and the privilege becomes
meaningless," he said.
This is a recurring theme that I have written about previously, and --doubtless-- will be revisited again. For one view on this topic, see Randall Eliason, Leakers, Bloggers, and Fourth Estate Inmates: The Misguided Pursuit of a Reporter's Privilege, 24 Cardozo Arts & Ent. L.J. 385 (2006).
Another view is that bloggers --many of them working anonymously-- have taken on an increasing role as vanguards of accountability and accuracy in public discourse. See, e.g., Walaika Haskins, Bloggers Greatest Hits, Volume I & Volume II, TechNewsWorld (June 27 & July 11, 2007).
In a concurring opinion released earlier this month in Andrew v. Clark (4th Cir.), Judge J. Harvey Wilkinson, III, wrote:
It is well known that the advent of the Internet and the economic downturn have caused traditional news organizations throughout the country to lose circulation and advertising revenue to an unforeseen extent. As a result, the staffs and bureaus of newsgathering organizations—newspapers and television stations alike— have been shuttered or shrunk. Municipal and statehouse coverage in particular has too often been reduced to low-hanging fruit. The in-depth investigative report, so essential to exposure of public malfeasance, may seem a luxury even in the best of economic times, because such reports take time to develop and involve many dry (and commercially unproductive) runs. And in these most difficult of times, not only investigative coverage, but substantive reports on matters of critical public policy are increasingly shortchanged.
. . .
The verdict is still out on whether the Internet and the online ventures of traditional journalistic enterprises can help fill the void left by less comprehensive print and network coverage of public business. While the Internet has produced information in vast quantities, speedy access to breaking news, more interactive discussion of public affairs and a healthy surfeit of unabashed opinion, much of its content remains derivative and dependent on mainstream media reportage. It likewise remains to be seen whether the web—or other forms of modern media—can replicate the deep sourcing and accumulated insights of the seasoned beat reporter and whether niche publications and proliferating sites and outlets can provide the community focus on governmental shortcomings that professional and independent metropolitan dailies have historically brought to bear.
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