NJ: Blogger's Sources Protected

Vanderstreet says an appeal is under consideration.

David Gialanella is a reporter for the New Jersey Law Journal, an ALM affiliate of Internet Law & Strategy.

A New Jersey state court judge has extended the protections of New Jersey's newspersons' Shield Law to independent bloggers, even those who crusade against perceived government corruption and mismanagement.

Superior Court Judge Karen Cassidy on April 12 quashed a prosecutor's subpoena of Tina Renna, president of the Union County Watchdog Association, who posts frequently on a website called 'The County Watchers' (www.countywatchers.com).

'Under the governing case law, the fact that Ms. Renna's organization has an official stated purpose of being a citizen watchdog and an advocate for transparency in government, does not preclude this Court from finding that the County Watchers blog does not also have the alternate purpose of disseminating news,' Cassidy wrote.

In December, Renna posted two items ' entitled 'Generatorgate' ' claiming she had learned that 16 county employees made personal use of county generators after Hurricane Sandy. The reports did not name the officials.

Union (NJ) County Prosecutor Theodore Romankow, hearing about the claims, asked Renna to meet with office representatives and, after she didn't respond,
issued the subpoena on Jan. 11, seeking the officials' identities.

Renna, who has routinely criticized the office's investigations, moved to quash under the Shield Law, N.J.S.A. 2A:84A-21, which allows media personnel to refuse disclosure of all information related to the news-gathering process.

Cassidy held a two-day hearing beginning Feb. 28 at which Renna was the sole witness.

Renna's lawyer, Bruce Rosen, claimed the newspersons' privilege applies to her, likening Renna to newspaper columnists who express a political position but who engage in investigative journalism.

Rosen noted that Renna had been posting, on average, one report a week since 2005, attended county freeholder meetings, filed public-records requests, had stories run in The Star-Ledger and other news publications, and attracted 500 to 600 unique website visitors each day.

Assistant Prosecutor Robert Vanderstreet attempted to distinguish Renna's pursuits from true journalism. He pointed to the use of profanities in her posts, failure to adhere to good grammar and other standards, lackluster investigatory methods, failure to identify herself as a journalist, her stated purpose as a watchdog and activist, bias, and participation in local politics as a Republican committeewoman in Cranford, NJ.

In her ruling, In re January 11, 2013 Subpoena by the Grand Jury of Union County, New Jersey, 13-0001, Cassidy granted the motion to quash, holding the privilege applicable and noting that New Jersey's shield law is among the broadest in the nation.

Cassidy first noted that Renna had waived her privilege as to the identity of one of the 16 officials by providing that name to the Federal Bureau of Investigation, but said that waiver did not apply to the other 15.

Following the State'Supreme Court

The judge interpreted the NJ Supreme Court's ruling in Too Much Media LLC v. Hale , 206 N.J. 209 (2011) (available from RCFP.org at http://bit.ly/Z09tJt ), which did not extend the privilege to a self-described journalist who posted message board comments about supposed criminal activity in the online adult entertainment industry.

Cassidy said the three factors from Too Much Media determining applicability of the privilege all favored Renna: there must be a connection to the news media; the purpose must be to gather or disseminate news; and the materials at issue must be obtained in the course of professional newsgathering activities.

Renna and her fellow bloggers write about county political and government issues left uncovered by traditional media outlets. And 'while the quality of Renna's writing is not akin to that of a print news reporter, or professional blogger ' the Supreme Court in Too Much Media made clear that a claimant need not be a professional to obtain protection under the privilege,' Cassidy said.

The judge noted the newsworthiness of Renna's original posts, her newsgathering methods and the frequency of her posts. Renna also showed that her purpose was newsgathering and dissemination, Cassidy said.

Prosecutors were unable to cite a case requiring that a news entity be unbiased, and did not demonstrate that Renna used secret videotaping or other non-journalistic investigatory methods to gather information about the 16 officials, Cassidy added.

'Perfect Test Case'

Rosen says he hopes the decision ' which he calls a 'perfect test case' for bloggers ' will be approved for publication.

'It's the only thing of its kind, not only in New Jersey but just about anywhere else,' says Rosen, a partner at McCusker, Anselmi, Rosen & Carvelli in Florham Park who represented the New Jersey Press Association and North Jersey Media Group Inc. as amici in Too Much Media.

Renna, while 'a little rough around the edges,' is 'a courageous and a good reporter,' Rosen says, adding that a contrary ruling would have shut out Renna's sources.

Romankow said in a statement that the 15 names Renna still allegedly has in her possession greatly outnumber those turned up by his own investigators looking into generator misuse.

'Rather than acting responsibly, or in the public's best interest, or publishing the names as she asserted she would, Renna hid behind the court, and now should be considered complicit in harboring the very people she believes committed misdeeds,' Romankow said. 'Personally, I believe she was caught in a lie and chose to waste time and money by hiding.'