BLATHER REVIEW

Another good post. This is a narrow argument made by MSM and Apple Computers and they are not allowing for progress through technology when they define the shield laws this way. Tell me this, before newspapers, people received their news by word of mouth or through the church, when newspapers arrived; was there an outcry that a new form of media would replace that system? When television news joined the fray, did people claim it was irresponsible journalism? When internet magazines began to be published, did no one stand up and protest the legitimacy of the news? I don't know the answer, I would be suprised that there was no conflict between the old media and the new media at the time. Old media just needs to realize the new media is beginning to take form. And I don't think it will just be bloggers in the mix, but other types of media and news sources will evolve through technology and you can either embrace it or go down fighting. Can you guess which the MSM is doing?

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For the record, I have two blog posts on this subject here and here.

Jody,

This case was basically about violation of contract law and conspiracy to that effect. The Apple employees have signed NDAs and are bound by law to not release the information. There is no civil liberties case here because, if some of the MSM stories can be believed, Ciarelli (dePlume) actually solicited people to violate the law. In the case of something like the Pentagon Papers, there are whistleblower laws that the reporter could use, but this is just greed.

As this post at The Shape of Days points out, Apple was in fact harmed by this. Their stock and the public image of the iPod mini were hurt by Think Secret's **mostly** accurate reporting. The problem here is that there is no guarantee that the information released is accurate and sites like Think Secret set up an almost libelous campaign against Apple.

Why should Apple have to spend tons of money on media campaigns to fight rumor mills like Think Secret because they got employees to break the law? If Think Secret were tossing out possible prices, that'd be one thing and Apple wouldn't have sued. The problem is that they are getting employees to break the law, they are releasing information that is proprietary at the time and that may actually not be accurate and creating a public image that says it probably is correct. Then Apple takes a hit if it isn't what the public is expecting or better.

Apple is wrong for saying that bloggers don't have protection under freedom of the press, but they aren't saying that we have no freedom of speech. To confuse this case with the FEC is folly. Apple doesn't want to restrict people from talking about its projects, even making wild conjectures about what they might be. What they want is people to stop hanging around their company trying to get people to share sensitive information. Think Secret should be glad that they aren't going after them for industrial espionage.

Think Secret has a long history of doing this sort of stuff and finally they went off the deep end. One blog I saw, said they actually nailed the entire Apple product line for this business quarter. They have been skating on the edge for years and now Apple finally said enough is enough and went after them. I'd say that the guy is pretty lucky he's getting sued instead of getting a notice that the FBI is conducting an industrial espionage investigation.

MikeF, I think we're at an impasse because we're arguing two completely different aspects of this case. Apple's lawyers may be completely right in arguing that this is about the violation of a legally binding non-disclosure agreement. But Apple, Think Secret and whoever the rest of the players are shouldn't matter to us, though. Have the leakers and bloggers obey the Law. Great!

But, because of the way Apple is arguing the case, what's at stake is the status/legitimacy of bloggers, in the broadest sense, as news sources.

There's a new world order out here and the Law needs to catch up.

The thing that has bothered me from the beginning is that the U.S. government is now defining who can say what. This case won't have any bearing on McCain-Feingold which is what is really at the heart of the issue. In fact, an even bigger problem is the fact that we have such a stupid judiciary that cannot read "freedom of press" for what it really means: freedom to publish your speech. The first amendment technically does not give you any right to reveal even something like the Pentagon Papers. Make a common law argument for it, or base it on whistle blower laws, but please don't confuse the first amendment and "freedom of the media."

I am much more concerned with what seems to be a realization by the government that freedom of the press really does mean the freedom to publish, while the claim it means freedom to do journalism. The best case to attack this issue on is the McCain-Feingold issue because that is the one that actually poses real restriction on bloggers. It doesn't really matter if you are a considered a journalist or not, so long as laws like McCain-Feingold don't limit your freedoms of speech, publishing and association.

My problem with the way people have been reading Apple v. dePlume is simple. This case doesn't matter in the scheme of things. Any time wasted defending Think Secret and its ilk, which aren't even blogs, is time that could have been better spent lobbying against McCain-Feingold. We aren't going to get public sympathy if we do any sort of crusade on this particular issue. The real problem lays with the government regulation.

As far as bloggers being considered journalists, the only bloggers I know of that should be considered real journalists are ones like La Shawn Barber who happen to be real journalists who do real journalism work. Commenting on, critiqing, etc. is not journalism work. It is constitutionally protected speech, but it is nothing remotely akin to investigative journalism.

Maybe it's just because I have no real desire to go out and get press credentials of my own that I don't care about the journalism angle here. The only issue I see here is a bunch of idiotic politicians who want to tell me what I can say and do. That's a broader, more severe issue to me. I also happen to believe that if the people of California feel that bloggers are not journalists for the purpose of their law, that's fine. As long as they aren't censoring bloggers, I don't feel there is anything wrong with that. It's their state, and if it comes to Virginia, where I live, I'll contact my delegate and tell him to fight it and chances are he will because he is quite conservative and anti-state. The last part that gets my goat is that my rep didn't even vote for McCain-Feingold, IIRC most of Virginia's reps, both Democrats and Republicans, did not, and yet we have no control over our own slice of the net anymore.

One thing I wanted to emphasize: this law is a California law. It doesn't apply nation-wide. That is the reason people like me are dumbfounded as to why people care so much about it. McCain-Feingold affects everyone.

As far as bloggers being considered journalists, the only bloggers I know of that should be considered real journalists are ones like La Shawn Barber who happen to be real journalists who do real journalism work. Commenting on, critiqing, etc. is not journalism work. It is constitutionally protected speech, but it is nothing remotely akin to investigative journalism.

But what if is? What if you or I have inside info that can break a story of real and present importance? Why would LaShawn Barber be able to do it but not you or me? Because she went to journalism school? Got a degree and draws a paycheck from United Press International or whoever? Isn't the message more important than the messenger?

I think our only disagreement stems from the fact that you're arguing the law as it is and I'm arguing it as it should be.

And I don't see how McCain-Feingold is central to this case, at all. The FEC issue is about whether or not speech is an in-kind contribution to a candidate. The Apple case is about whether or not bloggers are entitled to the same protections as "legitimate" journalists.

I sense that you see this debate as a distraction from catching, killing and eating for breakfast, the big fish: McCain-Feingold. That may be. In that sense: you're debating against the issue as "an issue", at all. Fair enough! :)
But, I hope, we can walk and chew gum at the same time and open a can o' whoopass on both of 'em!!!

Tuning Spork,

The Apple case will only apply in California, even if the SCOTUS rules in Apple's favor. Your state, assuming it isn't California, is free to define journalists however it wants to. The point I have been making is that this case is at best a regional issue, while McCain-Feingold is national. It is the first step toward near total regulation of political blog speech in general. You can't hide from that precedent in America by moving to another state.

I agree with you that the California law should apply to bloggers, but I won't lose sleep if it doesn't. If there is a similar case in Virginia, where I live, the defendent will be judged based on the Virginia Commonwealth Code and Virginia court precedent. California won't enter into the picture except as maybe a suggestion. Each state is free to define bloggers however they see fit. If California wants to regulate journalism more closely by giving shield protection only to professionals, that's the prerogative of the people of California.

Do you live in California? Is that why you care so much about this case? I'm serious about that question.

I'd personally like to see a federal shield law that applies to federal issues and journalism, and I would want it to apply to all citizens and resident aliens alike. AFAIK we already have federal whistleblower laws that protect people who come forward to expose problems in government.

The reason I think the judge won't touch the issue of the shield law here is very simple. I am surprised that the case is even in state court considering that it was a federal intellectual property law that was violated. The court will most likely sidestep the issue of whether bloggers are journalists altogether because that is not germaine to the case. The issue in the case is that dePlume and his cohorts made a mockery out of a lot of serious state and federal laws that even Dan Rather would have gotten his balls chopped off for if he broke.

The issue here is that people only are protected by the law if they are bringing forward evidence of illegal activity. I seriously doubt that any judge in any jurisdiction would let a reporter get away with witholding a source just to be contrary.

Btw it would appear that the NY Times reporters who blew Valerie Plame's identity are getting beat up pretty badly in federal court. It seems that the federal courts are not nearly so sympathetic to journalists who withold names of criminal contacts as one would think. I personally happen to agree with that. If you steal information or reveal names of government agents working in any classified field, then you won't get protection under the law.

So yes, to answer your last point. I think that it'd be great to see both cases get won by the right side. I still think the real effort needs to be put into McCain-Feingold because that'll have the farther reaching impact on blogging itself. See, that cuts down to basic free speech issues, not whether we "can compete with the media."

The problem with the California case is that AFAIK, the shield law is actually enshrined in their state constitution thanks to a referendum. So if that be the case, it'll not be decided by a court case. It'll actually take a new proposition.

Nope, I'm not in California, I'm in Connecticut. But there are plenty of bloggers in California.

"The reason I think the judge won't touch the issue of the shield law here..."

The judge has already ruled that a blogger is not a journalist under California law. While I may agree with the judge's decision, based on the law in California as I understand it, I also agree that this needs to be addressed in a referendum.

McCain-Feingold is the bigger problem for you and me. I blogged about the Apple case because I thought I had something to say about it. It interested me. The FEC/McCain-Feingold issue is being covered aplenty by others and I felt no inspiration to add my 2 cents to the debate at this particular time (though I have written about it in the past).

"I seriously doubt that any judge in any jurisdiction would let a reporter get away with witholding a source just to be contrary."

Nor a politician. The Supreme Court evicerated Nixon's claim of executive priviledge when it amounted to withholding evidence in a criminal proceeding. Neither should journalists be allowed to abet a crime by an informant.

But, again, the issue for me is the status of bloggers as legitimate news sources and their right to protect sources who give information about a crime while, presumably, not committing one in the process.

This is fun, Mike. Keep it comin'!!! :D

P.S. I got the link above at Michelle Malkin's site. She linked to it via Dan Gilmore. Gilmore wrote:

A judge in California has decided that the sites don't qualify as "journalism" (AP) under state law and/or the First Amendment. By his bizarre and dangerous standard, I apparently stopped being a journalist the day I left my newspaper job after a quarter-century of writing for newspapers.

I just read the AP link and it said nothing of the sort.

You may be right: the judge wont touch the Shield Law aspect of it. I hope so.

Well, all I can say is that in the end the judge in the California case probably cannot legally "rule for bloggers" because of the fact that the law is written into their constitution. I don't begrudge you your time writing on this subject, I was just saying that in the long run you're taking on a topic that'll have little relevance for you. Maybe in a few years, I'll be proven wrong on this, I don't know.

The question is do you really want a judge looking at a clearly worded part of the CA state constitution and essentially ruling against it? That would to me seem to be an even greater threat, and that's what a lot of bloggers seem to want. When we start doing that, it's over for civil liberties. The "penumbra" stretches them thin in some areas, but blatantly ruling against the constitutional clause is tyranny.