YOU READ IT HERE FIRST: A chemistry teacher who ran a “gripe site” against a Rutgers administrator wasn’t entitled to protection from the lawful search of his Westwood home and the seizure of computers, cellphones and other materials by claiming that he was in the news business, a state appeals court has ruled.
In the first New Jersey court opinion of its kind, the Appellate Division found that bona fide journalists are protected from searches and seizures under state law if they alert investigators to that standing and aren’t holding materials directly connected to a suspected crime.
The higher court also made it clear that simply calling yourself a journalist doesn’t automatically make you one.
Although technology has drastically changed the news media, New Jersey lawmakers’ intention in creating what is known as the Subpoena First Act in 1979 wasn’t to provide protection “based upon the posting of a wet kitten on the Internet,” the judges ruled.
“[I]t requires little analysis to determine whether a person associated with traditional media may claim the privilege,” they found. “However, when, as here, a ‘self-appointed’ journalist or publisher claims statutory protection, more scrutiny is required.”
Authorities in Bergen County were already familiar with Joseph Oettinger III.
Eight years ago, Westwood police found that Oettinger used the name of a borough man’s deceased father’s to register a site called westwoodcops.com. No charges were filed “because the victim suffered no monetary loss,” last Thursday’s ruling says.
According to two of his websites, Oettinger is an “experienced biology and chemistry teacher in North Jersey public school districts” and recently has been tutoring high-school students in a variety of subjects, from biology, chemistry and math to PSAT and SAT test preparations to guitar.
The recent case began in 2007, after Rutgers Associate Dean Amy Wollock told Oettinger that he needed to complete more credits before his teacher certification could be approved, the Appellate Division ruling says ( SEE: Oettinger v. Township of Bedminster, et. al. ).
Soon after, it says, a website appeared that included Wollock’s photo and a countdown feature that said “Only xxx days until the fun begins,” with the number of days reduced daily.
Oettinger, a masters candidate who was living in Bedminster at the time, didn’t explain what his site meant by “fun,” authorities said. Wollock told investigators that she was afraid of him.
A municipal judge convicted Oettinger of harassment and sentenced him to probation on the condition that he not use his computer to make “inquiries of any kind” about Wollock.
Oettinger won an appeal from a Superior Court judge in July 2009. By that time, however, authorities were investigating a new site he created that included Wollock’s home address — with an aerial map — as well as her phone number, date of birth, email address, average income, relatives’ names and value of her home.
An investigator from the Somerset County Prosecutor’s Office found that Oettinger established the site using an email account, firstname.lastname@example.org, that listed her as the registrant.
Armed with a search warrant, detectives took 18 items from Oettinger’s Westwood home on Nov. 9, 2009. The purpose was “to obtain evidence that plaintiff used his computer to engage in identity theft and related offenses,” the appeals decision notes.
No charges were brought. But Oettinger asked a Superior Court judge in Hackensack to suppress the evidence. He argued that he was entitled to the protection of New Jersey’s Subpoena First Act because he was “engaged in gathering, procuring, transmitting, compiling, editing, publishing or disseminating news for the public.”
After a hearing, the judge ruled against Oettinger. An appeal of that ruling led to last week’s higher-court decision.
Oettinger provided no proof that he was involved in news gathering or disseminating, the Appellate Division wrote. His sites didn’t identify him as a “news-reporting individual” because he “used a subterfuge” to distance himself from them, the judges added.
They also rejected Oettinger’s argument that investigators bore the responsibility for identifying him as a news person. It’s not up to authorities “to conduct an investigation to determine whether plaintiff was protected by the Act prior to seeking a warrant,” they emphasized.
Oettinger needed to tell them that before they tried to execute the warrant, and not after, the judges said – although he wouldn’t have been protected even if he did.
Detectives were looking for evidence of identity theft when they hit Oettinger’s residence, the court found. The “materials sought were not obtained in the course of newsgathering activities,” it said.
Under New Jersey’s Subpoena First law, the judges noted, anyone “engaged on, engaged in, connected with, or otherwise employed in gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the public . . . shall be free from searches and seizures [of] any documentary materials obtained in the course of pursuing the aforesaid activities, whether or not such material has been or will be disseminated or published.”
Amendments to the bill “expanded the category of persons who might claim its protection” – in part, by removing language that required the person to be employed “by news media for the purpose of” news gathering and disseminating. The word “professional” was also deleted and “publishing” added to the types of activities that could be protected.
As a result, the law now reads:
“Any person, corporation, partnership, proprietorship or other entity engaged on, engaged in, connected with, or otherwise employed in gathering, procuring, transmitting, compiling, editing, publishing or disseminating news for the public, or on whose behalf news is so gathered, procured, transmitted, compiled, edited, published or disseminated shall be free from searches and seizures by State, county and local law enforcement officers with respect to any documentary materials obtained in the course of pursuing the aforesaid activities whether or not such material has been or will be disseminated or published.”
That doesn’t “provide a blanket freedom from otherwise lawful searches and seizures,” the appeals judges emphasized.
As in Oettinger’s case, authorities still can obtain search warrants for “documentary materials” or “work product” materials obtained or used by suspects in criminal investigations, last Thursday’s ruling says.
That person also must have established proof that he or she is in the news-gathering business under the provisions of the Subpoena First Act in order to try and claim its protection, the judges said.
Click here to sign up for Daily Voice's free daily emails and news alerts.