Responding to a NJ State subpoena for confidential sources and newsgathering material


 

When does the NJ shield law protect me from having to reveal the identity of confidential sources or newsgathering material?

The New Jersey Shield Law—N.J.S.A. 2A:84A-21 — is one of the broadest and strongest in the nation. It protects confidential sources as well as information obtained by reporters and other news media representatives.  In order to be protected under the Shield Law it is first important to know whether you fall within the statute’s definition of “news media.”


 

Who is protected?

The New Jersey shield law covers a “person engaged in or connected to the news media.” The “news media” is defined as “newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.” N.J.S.A. 2A:84A-21(a)(b)

New Jersey courts have interpreted “news media” to include both traditional (that is, professional, whether online or paper) and non-traditional news media.

With respect to traditional media, the privilege covers: reporters, editors and photojournalists who work for newspapers and professional websites.  This includes both reporters who are full-time employees of a daily and part-time stringers at a small weekly.

With respect to non-traditional media, the New Jersey Supreme Court in the 2011 case of Too Much Media v. Hale, held that claimants must show the following to be considered a “non-traditional news media” and protected by the shield law:

1.They have the requisite connection to news media;

2.They have the necessary purpose to gather or disseminate news; and

3.The materials subpoenaed were obtained in the ordinary course of pursuing professional newsgathering activities.

Individuals Covered

 

Individuals Not Covered

 

In Renna v. Union County Alliance, N.J. Super. App. Div. (2013), Renna blogged that she knew the identities of sixteen county employees who used county generators for personal use in the aftermath of Hurricane Sandy and claimed protection under the N.J. Shield Law because she was (1) connected to the news media by actively engaging in the news process; (2) her posts were newsworthy and disseminated to a sufficient number of readers/visitors; and (3) the information was obtained in course of her newsgathering because she talked to the sources, attended freeholder meetings, and used the Open Public Records Act.  NOTE:  court looked to traditional journalistic functions like filing OPRA requests.

Hale, a blogger, was sued by a company alleging defamation and seeking the identity of her sources. The N.J. Supreme Court found that Hale was not covered by the N.J. shield law because the forum in which she was engaged was an Internet message board, which is a forum for conversation and not similar to traditional news media.  Too Much Media v. Hale, 20 A.3d 364 (N.J. 2011).

 

 

 

A public relations firm was not considered part of the “news media” under the N.J. Shield Law because the firm was only a spokesperson of the news, rather than reporting news.

In Re Napp Technologies, Inc. Litigation, 768 A.2d 274 (N.J. Super. 2000).

 


 

What is protected?

The New Jersey shield law protects:  “The identity of the source and any news or information obtained in the course of pursuing professional activities, including information from the source.” N.J.S.A.2A:84A-21. You do not have to promise a source confidentiality in order to protect his/her identity under the shield.


 

Is the shield law absolute or can it be “pierced?”

The New Jersey shield law provides absolute protection for civil proceedings, meaning that it will be pierced only if there is a conflicting constitutional right.  One of the most common circumstances in which a plaintiff will seek to pierce the shield is in a libel action.  In the libel case of Maressa v. New Jersey Monthly, 89 N.J. at 189 (1982), the New Jersey Supreme Court found that the newsperson's privilege was absolute and the plaintiff had no conflicting constitutional right to the protected material.

The New Jersey shield law may be pierced in criminal proceedings. The privilege here is not absolute because criminal defendants have a constitutional right to obtain evidence necessary to their defense, including confidential information.

Under the New Jersey shield law, a criminal defendant may pierce the shield for confidential information only when “the criminal defendant’s request for testimony is not overbroad, oppressive, or unreasonably burdensome and the value of the material sought outweighs the privilege against disclosure because it bears on innocence or guilt.” N.J.S.A. 2A:84A-21.3(b)

The New Jersey Supreme Court in In re Schuman, 114 N.J. 14 (1989) established the following test for criminal defendants to pierce the shield:

1.The information sought must be relevant, material, and necessary to the defense; and

2.The information cannot be obtained from less intrusive means.

We also note that the NJ shield law’s coverage “does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.” N.J.S.A. 2A:84A-21a(h).


 

What about other newsgathering materials, like notes and non-confidential materials or confidential materials that are not source-identifying?

The New Jersey Shield Law protects confidential and non-confidential information as long as it was gathered in the newsgathering process. Specifically, the statute states it protects, “Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.” N.J.S.A. 2A:84A-21(b).

SHIELD PROTECTED

SHIELD DID NOT PROTECT

Unpublished photographs of a burning fire were protected because they did not fall within the eyewitness exception since the photographers did not witness the act, but rather arrived after the act and recorded the results of that action. Matter of Woodhaven Lumber and Mill Work, 589 A.2d 135 (N.J. 1991)

A reporter’s information was not protected because the prosecution proved that the information was material, relevant and otherwise inaccessible to the criminal defendant.  Matter of Farber, 394 A.2d 330 (N.J. 1978)

 

 

Even though a reporter was present at a scene of physical violence, the reporter's testimony was not compelled because other witnesses were available. State v. Santiago, 250 N.J. Super. 30 (1991).

 

A reporter waived his privilege because he spoke voluntarily with the prosecutor's investigators, quoting the mayor saying that a police officer was let go due to a criminal violation.  The reporter was required to testify at a deposition in the police officer's defamation action and he had to provide interview notes and documents relevant to the statements made in the article.  In Re Venezia, 922 A.2d 1263 (N.J. 2007).

A student reporter was protected from disclosing her notes and all documents related to her interview with a professor because the interview was not relevant to the heart of the racial discrimination claim of those who had subpoenaed the documents and there were alternative sources for the same information.  Behrens v. Rutgers University, Civ. No. 94-358 (D.N.J. Aug. 3, 1995)

A suspect in a criminal investigation for internet-related harassment was not protected under the N.J. Shield Law because he published statements on a “gripe site” for the purpose of complaining about a university official, instead of publishing information in the course of ordinary newsgathering activity. J.O. v. Township of Bedminster, 77 A.3d 1242 (N.J. Sup. Ct. App. Div. 2013)

The State of New Jersey subpoenaed Schuman, a newspaper reporter, to testify at a kidnapping-murder trial as to the identity of his source and confidential information from his source. Schuman moved to quash subpoena and the court found he was privileged because the source’s confession to murder could be attained through less intrusive means, such as through confessions made to detectives.

In Re Schuman, 552 A.2d 602 (N.J. 1989).

 

A hospital patient brought an invasion of privacy claim against a media company that videotaped events in the hospital emergency room for a television program.  The court found the media company was protected under the New Jersey shield law because it was part of the “news media” and videotaping the events in the hospital was “newsgathering.” Also, the plaintiff did not have a constitutional right to override the protections of the Shield Law.

Kinsella v. Welch, 827 A.2d 325 (N.J. Super. Ct. App. Div. 2003).

 

 

Updated September 2015