New Jersey's "Too Much Media" Opinion Might Mean Too Little New Media

The current justices of the New Jersey Supreme Court yesterday might have unwittingly turned the state from a prescient haven for communications to a wallflower at the Information Revolution.
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New Jersey was the breeding ground for so many great advances in communications and media -- from the phonograph to the movie camera, from the tape recorder to the transistor, from the first experiments with news and sports radio broadcast to the first experiments in commercial broadband deployment. Yet, the current justices of the New Jersey Supreme Court -- once broadly regarded as the most forward-looking bench in the nation -- yesterday might have unwittingly turned New Jersey from a prescient haven for communications to a wallflower at the Information Revolution.

In Too Much Media v. Hale, the justices failed to recognize the ways in which information and news will likely be gathered, curated and distributed in an Internet-enabled world. The Court stated, "we do not find that online message boards are similar to the types of news entities listed in the [New Jersey Shield Law], and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards." The Court, however, gives no guidance to journalists, new entities, websites or lower court judges on how to draw the ever blurrier line between news media entities and online message boards. This will serve to chill would-be pioneers in new media from exploring content distribution vehicles that look too dissimilar from 20th century big media news outlets.

The difference between an online message board and a news entity might seem self-evident to current media consumers, particularly those weaned on old, static media outlets like newspapers and television broadcasts. As media evolves and becomes more collaborative, interactive, user-generated, "crowd-sourced" and mutable in real time, however, news media entities might look increasingly more like loosely-curated assemblages of user-generated comments on online message board. It shouldn't really matter where a journalist posts comments -- all that should matter is the intent of the commenter to expect protection as a journalist.

Now that the 21st century individual possesses the tools to be as powerful as a 20th century media empire, the courts should not solely protect media outlets that appear similar to their pre-Internet antecedents. In a world of user-generated content, each reporter must not feel that she needs to be part of a big media stable, but that might be the unintended consequence of the Too Much Media Opinion.

If Twitter had been designed to resemble a global online message board where anyone could post 140-character comments, would these commenters be protected by New Jersey's Shield Law? The Supreme Court opinion suggests that they would not. .

What if one of these commenters was a path-breaking NPR journalist/Tweeter like Andy Carvin, giving us real-time reports about the Arab Spring? Would Andy Carvin's sources be protected by New Jersey's Shield Law? If reported over the radio, in print, or even through the Twitterverse, presumably his comments would be protected. If posted to something resembling an online message board, the Court suggests that his comments might not be protected by New Jersey's Shield Law. And what if the next-generation journalist recognizes that the best method of disseminating her content is through something that resembles comment postings to online message boards? This next-generation journalist would be chilled from using this newfangled media distribution process.

The next Andy Carvin will have to think twice before distributing information through any outlet other than a traditionally recognized news media entity. I'd like to think that the next generation of Andy Carvins would not be deterred from posting comments to whatever site it deemed most capable of disseminating its information.

What brought so many pioneers of communications, most notably Bell and Edison from New York to New Jersey? In part, it was New Jersey's reputation as a fertile haven for innovation and entrepreneurship. It's a sad state of affairs that New Jersey might no longer be the haven for pioneers on the cutting edge of media and communications.

If I were forming an online new media company relying on the wisdom and goodwill of the people to help populate my site, I would be significantly less inclined to base my company in New Jersey as of yesterday. I now suspect that the new pioneers of communications and media will head to jurisdictions that embrace the evolving nature of media and communications.

I am hopeful that the New Jersey Supreme Court will consider The Huffington Post "similar to the types of news entities listed in the [New Jersey Shield Law] statute." But, if not, I'm glad I posted it from Brooklyn. ... And Jersey commenters -- beware!

Columnist's (or is it Blogger's?) Sources: In order to avoid any debate over implicating the New Jersey Shield Law, I will come clean on my own sources: I grew up in New Jersey and learned about New Jersey's powerful journalists' Shield Law while a student at Rutgers Law School and came to appreciate its nuanced and balanced judicial interpretations as a clerk for former Chief Justice Robert Wilentz of the New Jersey Supreme Court.

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