March 05, 2005

Free To Blog?

Apple Computers is making a case that bloggers are not protected by laws that protect journalists from being prosecuted for refusing to reveal their sources. Michelle Malkin has a post about it (with links to other blogs with commentary).

The skinny:

The Shield Law protects journalists from being held in contempt of court for refusing to disclose the source of any information that was gathered for news purposes. It applies to any "publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service."

The Shield "also likely applies to stringers, freelancers, and perhaps authors," according to The First Amendment Project. In one California case, People v. Von Villas, 10 Cal. App. 4th 201, 231-32 (1992), protections were extended to a freelance writer who had not yet signed a contract to publish his work. [emphasis added - TS]

That would seem to imply that bloggers -- "freelancing" for their audiences' benefit, not an employers -- would fall undre the protection of the Shield Law as well. That would only seem fair and logical in a society of free and open debate where information from within the bowels of government, from an un-named source, is seen as neccessary to the survival of a free state.

Some in the MSM have a different view:

The First Amendment of the U.S. Constitution also confers protections to journalists seeking to shield their sources, but as The Reporters Committee for Freedom of the Press observes, these protections are restricted to "legitimate members of the press." They do not extend to "any person with a manuscript, a web page or a film...."

And councel for the plaintiff argues likewise:

Apple's lawyers argue that Jason O'Grady of PowerPage "does not perform an investigative reporting function in the manner of a legitimate news outlet" and thus is not entitled to journalistic privileges under either the Shield law or the First Amendment [still more emphasis added - TS]

What they are arguing is that a blog, such as PowerPage, is not reporting "legitimate news" because it is not part of a "legitimate news outlet" and, therefore, cannot claim to be protected by the Shield Law. The attorneys for Apple can be forgiven for arguing their client's case with all argumentation that they have at their disposal, I suppose. But, the "Reporter's Committee for Freedom of the Press" (whatever in the world THAT is) ought to be condemned for arguing against the added protection of free bloggers.

What is the purpose of freedom of the press if not to protect exactly what bloggers do? The problem here is that the loose conglomeration of MSM institutions is nervous about the growth of the blogosphere and the MSM - and the politics of incumbency - are trying to figure out what to do about us.

Michelle writes:

As in the FEC case, the effort to draw a bright line between blogs and traditional media outlets has some rather bizarre implications. For example, do I enjoy the privileges of a "journalist" when I am gathering information for my syndicated column but not when I am gathering information for my blog? Do bloggers at Slate, Salon, and MSNBC enjoy protections not afforded to Matt Drudge?

While the Shield Law, clearly, does not extend to Citizen Me when I have inside information that I wanna keep to myself, does it extend to me when I have that inside formation that I post on my blog? Is my source guaranteed anonymity when I am writing, not to one friend, but, to a general audience of strangers with a stake in this in formation?

I vote YES.

If a newspaper owner or editor is free to print and edit as he wishes -- and to protect his sources -- then I say that I, as a blog owner, have that right as well. My blog is my soapbox and, while it is not an incorporated "legitimate news outlet", it is, nonetheless, a news outlet. If a freelance writer, without a "legitimate" employer, is protected then so are bloggers. We are freelancers, we are our readers.

Bloggers are protected by the Shield Law precisely because we perform an investigative reporting function in the manner of a legitimate news outlet.

Scratch that.... We do it even better now and again. Somebody's running scared.

Let the Alliance of Free Blogs unite!!!

P.S.: This might be an apropos aside at this juncture:

incumbent (in-kum-bent) adj. 1. Lying, leaning or resting on something else. 2. Imposed as an obligation or duty; required. 3. Currently holding a specified office. --n. A person who holds an office.

I suppose that the original intent was to inspire an office-holder with a sense of responsiblity and obligation to the People. Nowadays, though, it seems that that imposition is resting more and more upon the People.

UPDATE: There's lots of talk out in the blogosphere about this. Check out Michelle Malkin for lots of links with different points of view.

Mike over at Blind Mind's Eye argues that the bloggers being sued by Apple are not entitled to Shield Law protection on the basis that leaking the information didn't in any way perform a public service.

"A regular reporter would not have gotten away with this either and the one thing that Apple is scared of is people with little to lose like Think Secret's Ciarelli spilling the beans at every turn."

That may be true (Captain's Quarters had a different take), but Apple's lawyers aren't just arguing that bloggers are not entitled to Shield Law protection in this case, but, rather, are to be denied Shield Law protection is ALL cases by virtue of not being "legitimate journalists".

The issue at the heart of this debate is not whether the identities of the specific Apple leakers can be protected, but whether a blogger can protect the identity of any source.

IOW, are you and I journalists if we publish the Pentagon Papers in the New York Times but not if we publish them on my own websites?

The California Shield Law seems to specifically exclude bloggers from it's prottection for not being part of a "legitimate news organization". The debate - as I see it - is about whether or not that is fair, and shoyld the law be rewritten to protect bloggers who use anonymous sources to expose the truth in important stories in the future.

Posted by Tuning Spork at March 5, 2005 08:41 PM

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?

Posted by: jody at March 5, 2005 09:15 PM
A Shanghai blog featuring news and views of great interest

Posted by: Zhang Liping at March 6, 2005 05:14 PM

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


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.

Posted by: MikeF at March 6, 2005 08:54 PM

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.

Posted by: Tuning Spork at March 6, 2005 09:35 PM

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.

Posted by: MikeF at March 6, 2005 09:52 PM

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.

Posted by: MikeF at March 6, 2005 10:10 PM

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!!!

Posted by: Tuning Spork at March 6, 2005 10:34 PM

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.

Posted by: MikeF at March 6, 2005 11:22 PM

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.

Posted by: MikeF at March 6, 2005 11:27 PM

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

Posted by: Tuning Spork at March 7, 2005 12:05 AM

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.

Posted by: Tuning Spork at March 7, 2005 12:22 AM

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.

Posted by: MikeF at March 7, 2005 10:21 PM
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