Hi, I would like to get a quote for proofreading the attached sample of legal memo.
MATHIS & PRICE LLP
100 Happy Lane · Pleasantville, NJ 10101 · (201) 222-2222
To: [Requesting Attorney]
From: Shir Eshkol
Date: October 10, 2021.
Subject: Peggy Olesman – Subpoena (Harrison v. Erikson Advertising L-2214-21)
Question
Is Ms. Peggy Olesman (“Olesman”) entitled squash the subpoena seeking her testimony and documents with respect to her blog post about sexual harassment in her former workplace, under New Jersey’s newsperson privilege?
Brief Answer
To gain the protection of the newsperson privilege, Olesman must prove, prima facie, three elements: (1) a connection to news media; (2) a purpose to disseminate news; and (3) that the materials sought were obtained in the course of pursuing professional newsgathering activities. Here, the last two elements (2-3) are well established. Whether the first element is satisfied is not as clear; however, given the New Jersey courts’ broad interpretation of the newsperson privilege, there is a substantial likelihood it would apply to Olesman’s post.
Facts
On August 9, 2021, Ms. Olesman was served a subpoena in connection with a complaint (“the Complaint”) which was brought against Erikson Advertising LLP (“Erikson”) and its CEO (“the Defendants”). The Complaint was filed in July 2021 in New Jersey State Court by a former employee of Erikson, Ms. Harrison (“Plaintiff”). The Complaint alleges that the Defendants discriminated against the Plaintiff in violation of New Jersey’s Law Against Discrimination. It also alleges defamation through a publication of an inter-office memorandum about Plaintiff’s departure from Erikson.
Olesman is a former employee of Erikson. Olesman started her way as a secretary at Cooper & Stirland in 2012 after completing a graduate degree in Engineering. She became a junior copywriter and worked under the supervision of the Plaintiff, who was an equity partner there. In March 2020, Cooper & Stirland merged with Erikson. According to Olesman, after the merger, the Plaintiff’s role was minimized, and she started working under Mr. Ferg Donnelson (“Donnelson”). The Plaintiff told Olesman about Donnelson’s harassment as described in the Complaint (sending her chocolate and flowers with lewd notes). Olesman also heard that despite the Plaintiff’s complaint, Erikson did nothing to stop Donnelson. In December 2020, Olesman left Erikson.
Shortly before leaving Erikson, on November 30, 2021, Olesman created a website called “Peg Tales” (“the Website”). On June 15, 2021, Olesman published a post titled “Advertising for Equality” (“the June 15, 2021 Post” or ”the Post”) on the Website. The Post mentioned Erikson’s historical mistreatment of women and invited readers to discuss the issue of workplace discrimination in general. It was published under a section titled the “cruel, cruel world”. According to Olesman, this section was intended to include “hot-button” social issues. However, in fact, Olesman has only published in it the June 15, 2021, Post. In addition to this section, the Website includes two more sections: the style section, which has 4 short posts, two of which (dated 11/30/20 and 1/15/21) are dedicated to fashion items; and the travel section, which includes 3 short posts about traveling (dated 15/3/21; 5/1/21; 6/30/21).
A copy of the Website’s pages is attached as Appendix 1.
A copy of the Website’s Analytical Report is attached as Appendix 2.
The subpoena seeks Ms. Olesman’s testimony about the case. In addition, the subpoena seeks the following documents: (a) Ms. Olesman’s “full and complete file” concerning the June 15, 2021 post; and (b) “[a]ny and all documents, including emails, correspondence, memoranda, notes, and a list of all people who contributed information concerning the June 15, 2021 post…”.
Discussion
N.J.S.A. 2A:84A–21 and N.J.R.E. 508—also known as the New Jersey “Shield Law”—affords newspersons the privilege of not disclosing confidential sources and other kinds of news or information. The seminal case regarding the applicability of the newsperson’s privilege is Too Much Media, LLC v. Hale, 206 N.J. 209 (2011). In Too Much Media, the New Jersey Supreme Court held that a claimant seeking the protection of the newsperson’s privilege must prove, prima facie, three elements: (a) a connection to news media; (b) a purpose to gather, procure, transmit, compile, edit or disseminate news; and (c) that the materials sought were obtained in the course of pursuing professional newsgathering activities. The Court further held that “… self-appointed journalists or entities with little track record who claim the privilege require more scrutiny… the popularity of the Internet has resulted in millions of bloggers who have no connection to traditional media… In those cases, a more probing hearing would likely be needed to determine if the privilege applies”.
I will now examine whether Olesman will be able to prove, prima facie, these three elements.
- The first element: does Olesman have “a connection to news media”?
To gain the protection of the Shield Law, Olesman must first show “a connection to news media”. Olesman is the owner and the operator of “Peg Tales” Website and the author of all its posts, including the June 15, 2021, Post. As such, she has “a connection” to the Website. The question is, however, whether the Website falls under the Shield Law’s definitions of “news media”?
N.J.S.A. 2A:84A-21a(a) defines “news media” 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-21a(b) further defines “news” as:
“[A]ny written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect.”
The definition of “news media” includes not only traditional communication means such as “newspapers” but also “other similar… mechanical or electronic means of disseminating news to the general public”. In Too Much Media, the New Jersey Supreme Court discussed whether comments posted on an internet message board fall under the definition of “news media”. The Court concluded that such comments do not qualify as “news media”, however, it did explicitly recognize that a “single blogger might qualify for coverage under the Shield Law provided she met the statute’s criteria.” The Plaintiff can make several arguments in an attempt to show that the Website is not “similar” to traditional means of disseminating news to the general public, such as a “newspaper” or a “magazine”. I will now discuss these potential arguments.
The Formal Characteristics of The Website (Subscription, Posts Frequency, Etc.)
N.J.S.A. 2A:84A-21a defines “newspaper” as “a paper that is printed and distributed ordinarily not less frequently than once a week and that contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at a United States post office as second class matter.” Here, the Website’s posts were not “distributed ordinarily” (for example, in the form of a newsletter distributed by email to subscribers). In addition, posts were not published on a regular basis and at a weekly frequency. Olesman published her blog posts only once or twice a month, and during December 2020 and February 2021 she hasn’t published any posts. The Website also does not meet the criteria for entering the U.S. post office as second class matter according to The Domestic Mail Manual. The Plaintiff may therefore argue that the Website is not “similar” to a “newspaper”.
Likewise, Plaintiff may argue that the Website is not “similar” to a “magazine”. A “magazine” is defined in N.J.S.A. 2A:84A-21a as “a publication containing news which is published and distributed periodically, has a paid circulation and has been entered at a United States post office as second class matter.” The Website is not “distributed periodically”, it does not have “a paid circulation”, and, again, does meet the said criteria.
Nevertheless, given the New Jersey Supreme Court’s broad interpretation of the “similarity” requirement, these arguments are unlikely to prevail. Throughout the years, New Jersey courts have gradually broadened the scope of the Shield Law and applied it to various written publications, including ones that lacked the formal characteristics of a “newspaper”, a “magazine” or other traditional media means. In the Avila case, the New Jersey Superior Court’s Appellate Division held that a weekly tabloid paper that was distributed for free and lacked postal designation is “similar” enough to a “newspaper”. In Trump v. O’Brien, the New Jersey Superior Court found that a biographical book containing personal and financial information about the former President, Donald Trump, falls into the “news media”, although it did not satisfy most of the elements of a “newspaper” (besides being printed and priced).
In Too Much Media the New Jersey Supreme Court held that “certain online sites could satisfy the law’s standard”. To demonstrate this, the Court referred to other courts’ decisions that applied the newsperson privilege to online publications. This implies that the Court recognizes that the Shield Law is applicable to online publications, even though they lack the formal characteristics of traditional media (ordinary distribution, weekly frequency, paid circulation, and qualification for postal designation). Indeed, in The County Watchers case, the Superior Court of New Jersey applied the Shield law on an online blog, “The County Watchers”, that did not have any of the formal characteristics of a “newspaper” or other traditional news media. The Superior Court based its ruling on the fact that the blog consisted of original posts that were gathered by using journalistic methods. The holding of the County Watchers case, although not binding, demonstrates the broad application of the Shield Law under Too Much Media.
The Website’s content
The Plaintiff may argue that the Website is not “similar” to traditional media means and attempt to distinguish it from The County Watchers case, based on its content. The Plaintiff may contend that unlike in The County Watchers case, here the Website does not discuss public matters and has no news value. Instead, it is used to share Olesman’s personal and often random thoughts and experiences. To illustrate, on June 30, 2021, Olesman published a post titled “I Hate To Fly” containing only 7 words: “That is all. Just wanted to share.” Similar posts were published on May 1, 2021, and August 10, 2021. As for the so-called “cruel world” section, the Plaintiff may argue that it has no content besides the June 15, 2021, Post and that even this Post is merely a piece of gossip about Olesman’s previous workplace. The Plaintiff may also point out that the Website’s posts are written in a breezy, non-formal language and that Olesman had no educational background or experience in journalism when she wrote the Post. The Plaintiff may therefore argue that “Peg Tales” is an entertainment blog at most, not a news media.
While these are serious arguments, they too are unlikely to preclude the Website from the definition of “news” and “news media”. The definition of “news media” under the Shield Law is broad and applies to all “news or information obtained in the course of pursuing […] professional activities”. The definition of a “newspaper” includes publications that “contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest”. Indeed, New Jersey courts have broadly construed the terms “news media” and “news” and applied them to various kinds of publications.
Furthermore, the New Jersey courts have repeatedly rejected attempts to distinguish between “entertainment” and “news”. For example, in Trump v. O’Brien, the Superior Court’s Appellate Division reasoned that the evaluation of the entertainment value versus news value of a publication is essentially subjective. Consequently, it interpreted the term “news” to include any “matters of public interest”. The Court further reasoned that “the Shield Law sensibly requires only that “one” of the main functions [of the publication] be the dissemination of news….”. In our case, the Website has three main functions, and one of them is indeed to cover “hot-button” social issues. In Trump v. O’Brien, the Court also dismissed arguments regarding the “breezy, irreverent” writing style of the publication. Similar arguments were rejected in The County Watchers case, holding that “the courts have not limited the protection [of the Shield Law] to claimants who consistently and exclusively author newsworthy writings, or only to those who uphold certain journalistic standards in their writing and conduct”.
In summary, whether the Website falls under the Shield Law is unclear; however, there seem to be strong arguments in favor of its application on Olesman’s Post.
- The Second Element: Did Olesman Have a Purpose to Gather or Disseminate News?
The second element that the claimant must show, prima facie, under Too Much Media, is a purpose to gather, procure, transmit, compile, edit or disseminate news. The claimant’s testimony can serve as sufficient evidence to establish this element. According to the Superior Court’s holding in The County Watchers case, it is sufficient to prove that one of the main purposes of the Website is disseminating news to satisfy this element. Accordingly, it was held that the fact that a publisher of a blog “has an official stated purpose of being a citizen watchdog and an advocate for transparency in government” does not preclude a finding that the blog has an alternate purpose of disseminating news.
Olesman explained in our meeting that by publishing the Post, she intended to use her social media presence to expose Erikson’s sexist culture and start a larger conversation about workplace inequalities and discrimination. She further clarified that her purpose was to educate people and inspire social change. Olesman also mentioned that she had always intended the “cruel world” category to cover “hot-button” social issues, however she waited to build up a readership before diving into such controversial matters. It seems, therefore, that similarly to The County Watchers case, at least one of Olesman’s main purposes was to disseminate news. This conclusion is also supported by the fact that Olesman is currently pursuing a degree in Critical Journalism. Even if Olesman wanted to achieve other social goals (such as inspiring change), it does not change this conclusion.
The Plaintiff might attempt to undermine Olesman’s testimony by suggesting that as a former employee of Erikson she had a personal motive to publish the post. This claim can be supported by the fact that the June 15, 2021, Post was and still is the only post under the “cruel world” section. However, according to our inquiry, there is no factual basis for such a contention. Olesman can testify that she waited to gain sufficient readership before writing about controversial issues. Indeed, the Website Analytic Report, shows a gradual increase in its traffic—from 100 hits in November 2020 to 1500 in June 2021. During our meeting, Olesman mentioned that she is working on her second story, about the state of discriminatory policing in the tri-state area. I suggest advising Olesman to publish this story in the “cruel world” section before filing the motion to squash the subpoena.
In summary, despite potential evidential difficulties, it seems that Olesman would be able to satisfy the second element and show that her intention when publishing the Post was to disseminate news.
- The Third Element: Were the Materials Sought Obtained “In The Course of Pursuing Professional Newsgathering Activities”?
Under Too Much Media, the third required element for establishing a newsperson privilege is that the materials sought were obtained “in the course of professional newsgathering activities”. According to the definition in N.J.S.A. 2A:84A-21a(h) this term includes:
“…any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.”
To satisfy this element, the claimant does not need to provide a detailed account of her specific activities and investigatory methods. In The County Watchers case, a certification of the blogger that she operated “in the course of [her] duties as the person who writes, operates and publishes” was sufficient for its establishment. In addition, in Too Much Media, the New Jersey Supreme Court held that the Shield Law “does not require newspersons to identify themselves as reporters” and does not require “understanding or agreement of confidentiality”. It also held that “[m]aintaining particular credentials or adhering to professional standards of journalism—like disclosing conflicts of interest or note-taking—is also not required by the Shield Law.”
In our case, Olesman’s research included: (1) reaching out to the informal “committee” of Erikson employees which discussed problems with the firm culture; (2) interviewing Ms. Smith—who told Olesman that Donnelson “had been positively lecherous when they worked together” and that she was suddenly let go because, according to Hobartson, she wasn’t “Erikson material”; (3) interviewing Ms. Trudy Campbell—who told her she was let go from Erikson after complaining about similar harassments, and that Hobartson denied the existence of a problem. These actions seem to satisfy the third element. As mentioned above, Olesman will not have to give specific details about her actions; a general certification will be sufficient. In addition, even if Olesman has not presented herself as a reporter, and even if she has not disclosed that she was a former employee of Erikson, that will not preclude her from satisfying the third element.
In summary, the third element for establishing the newsperson privilege under New Jersey Shield law also seems to be satisfied.
Conclusion
In light of the Supreme Court of New Jersey’s broad interpretation and application of the newsperson privilege, Olesman has good chances of proving she is entitled to its protection, despite certain difficulties that were discussed above. In that case, according to N.J.S.A. 2A:84A-21, Olesman will not be required to testify or disclose the documents sought in the subpoena regarding her sources and her research, as well as regarding the editorial process of the Post.
