NJ Shield Law Protects Politically Motivated Blogger
In connection with a grand jury investigation undertaken by the Union County Prosecutor’s Office about possible misuse of generators by public officials during Hurricane Sandy, a New Jersey Superior Court judge granted a blogger’s motion to quash a prosecutor’s subpoena seeking to compel the blogger to appear and testify. In re January 11, 2013 Subpoena by the Grand Jury of Union County, New Jersey [1].
The court concluded that the subpoena sought privileged information protected by the newsperson’s privilege codified in N.J.S.A. 2A:84A-21 [2].
Following Hurricane Sandy, the Union County Prosecutor’s Office began to investigate reports that several County employees improperly used county-owned generators during the power outage created by the hurricane. Tina Renna, president of the Union County Watchdog Association (“UCWA”), is the primary writer and editor of a blog entitled “The County Watchers.” The blog appears on UCWA’s website [3], a non-profit organization in which Renna is the president. According to the tagline displayed on its website, UCWA serves the purpose of “Shining a Light on Government.” The court remarked that “[T]he UCWA is a self-described advocacy group that reports on alleged waste, corruption, and mismanagement in Union County, New Jersey.”
In December 2010, Renna posted two items on the UCWA blog — titled “Generatorgate” — claiming she had learned that 16 county employees made personal use of county generators after Hurricane Sandy. Renna did not name the officials in her blog posts. Upon learning of the claims, the Union County Prosecutor asked Renna to meet with representatives of his office. When Renna failed to respond the prosecutor issued a subpoena seeking the officials’ identifies.
Renna, who frequently criticized the Union County Prosecutor’s Office’s investigations, retained counsel and moved to quash the subpoena under New Jersey’s Shield Law, N.J.S.A. 2A:84A-21 [2], which allows media personnel to refuse disclosure of all information related tl the news-gathering process. In opposing the subpoena, Renna argued that the privilege applies because she is part of a team of correspondents who engage in original news reporting, advocacy, and investigative journalism for the Union County Watchdog Association through their blog. In an affidavit that she filed with the Court, Renna maintained that since 2005 when the UCWA was formed she regularly posted articles and materials on the blog, generally averaging one story per week and working an average of ten to twenty hours or more per week as an editor and reporter. In addition, her affidavit claimed that together with her colleagues they posted more than 1000 news and video broadcasts. She further certified that she obtained the information for the “Generatorgate” postings during the course of her professional duties as a news reporter and advocate for the UCWA.
The court held a plenary or evidentiary hearing to determine whether Renna satisified the criteria for application of the Newsperson’s Privilege contained in the Shield Law statute. Based on the New Jersey Supreme Court’s precedent setting case, Too Much Media, LLC v. Hale, 206 N.J. 209 (2011), the hearing’s scope was limited to whether Renna’s blog postings satisfied the following three factors:
- Connection to news media
- Purpose to gather or disseminate news
- A showing that the materials sought were obtained in the course of professional newsgathering activities.
Also, the court had to weigh whether Renna waived the Newsperson’s Privilege. Renna testified at the evidentiary hearing and was cross-examined by an assistant County prosecutor.
Weighing these factors, the trial judge concluded that Renna satisfied the prima facie elements to sustain her Newsperson’s Privilege claim and thus quashed the subpoena. Although the trial judge found that Renna waived the privilege with regard to the identify of one official whose name she provided to the FBI, the judge found that the waiver did not apply to the other 15 county employees.
The trial judge was persuaded by the newsworthiness of Renna’s original blog posts, her news-gathering methods, and the frequency of her blog postings. Renna also demonstrated that her purpose was news-gathering and dissemination.