'Too Much Media' Case No Cause For Alarm In the Blogosphere

The case of Too Much Media, LLC (Plaintiff) v. Shellee Hale (Defendant), decided by the Superior Court of New Jersey Appellate Division on April 22, 2010, is not a decision that should cause alarm among those who are engaged in, or are patrons of, new media news sources.

Internet enterprises associated with mainstream news outlets run their own news-related websites. Legitimate self-interests led them to challenge the trial court’s understanding of slander per se in this case. Consequently, if you consider the defendant, Shellee Hale, a member of the “new media,” then NBC and the New York Times came to her partial defense.

But… here’s the question: Does Hale become a journalist of the new news media by simply submitting a comment on a website?

Hale’s act of posting a comment on a website did not, in the Appellate Court’s decision, singularly qualify her as a journalist. Consequently, she is not a heroine of the independent (of legacy media affiliation) internet news media, and not one around whom we should necessarily rally to support.

The law firm of McCusker, Anselmi, Rosen & Carvelli filed an amici curiae brief in the case representing the New Jersey Press Association, NBC Universal, Inc. and the New York Times Company. In the conclusion, the parties to the brief, signed by Bruce S. Rosen,

…respectfully requests that this Court reject the findings and conclusions of the court below [i.e., trial court] on the issue of libel damages.

The brief asserted that awarding damages for slander in New Jersey requires concrete rather than “presumed” damages. Furthermore, the brief asserted that,

The [lower] Court’s contention that written internet defamation should be treated as slander, more specifically, slander per se, with presumed damages, is utterly unsupported by any case law, including the unpublished and reversed decision that it [the lower court] cited.

Bruce Rosen describes the limitations of this decision pertaining to what constitutes the application of New Jersey’s shield law to a journalist.

I am very critical of the test used for who is a blogger. Despite that I am not sure that she was a blogger – her first action was to go to the Washington State AGs office and say she was going to investigate the porn industry; she never wrote anything except to post to someone else’s site and there was little in the way of proofs as to what she was doing. I was a reporter and editor for years before becoming a lawyer – and the criteria in the decision isn’t even accurate for newspapers. All the same, this wasn’t a good case to declare who gets shield law protection.

Attorney Joel N. Kreizman of the law firm Evan, Osborne and Kreizman, representing the plaintiff, Too Much Media, LLC, states that,

I don’t think that internet media would want anyone and everyone who goes on a message board and defames somebody to be considered the equivalent of on-line news media. The court did not exclude on-line news media from the benefits of the shield law. Hale was just not considered news media of any type by the court.

The legal issues of what represents defamation in this case are yet to be resolved by a New Jersey court. Hale has 20 days to appeal to the New Jersey Supreme Court which can decide to hear or not hear the case. A no decision will put it back at the trial court level. The appeal decision was focused on the relevance of the New Jersey shield law to this case.

The oft-quoted statement in the Appellate Court’s decision that the “new media should not be confused with news media” is, on its face, accurate, although it could have been better worded by the author. It started fires where there is no heat. The judge wasn’t referring to the new media in reference to internet news outlets like the Breitbart sites and others operating across the internet, both independently and affiliated with previously established legacy media outlets.

All things considered, this is probably not a decision that threatens new media news-and-commentary sources. In other words, it’s not a ditch into which the new media should climb into in preparation for a fight. That day may come in another context, but not around this case.