Bloggers = Journalists, Says California Court; Apple Loses

The very specific California Shield Law came to the rescue of bloggers who were caught in legal crosshairs by Apple, in a decision by a three-judge panel from the state Court of Appeal in San Jose. The bloggers, most prominently Jason O'Gradey and his PowerPage, were vindicated by a decision that addressed whether bloggers have the same protections afforded traditional journalists in their use of confidential sources to reveal confidential, leaked information.

The case at hand involved revelations of a project code-named "Asteroid" that is being developed by Apple Computer in the digital musice space. In this case, Apple had tried to subpoena the bloggers ISP so that it could find e-mail between the bloggers and the confidential source or sources. An initial ruling by the Santa Clara County Superior Court had ruled in Apple's favor.

But the Court of Appeal said Californai's Shield Law "is intended to protect the gathering and dissemination of news, and that is what the (bloggers) did here." The Electronic Frontier Fondation had advocated on the bloggers' behalf. The Foundation invoked the name of Walter Cronkite to back the bloggers, noting that the Most Trusted Man in America has blogged for The Huffington Post, and asking whether he has "stopped being a journalist" because he is now a blogger.

Apple's concern in this issue seemed to be focused on the reality that the Worldwide Web makes it easy for increasing numbers of people to reveal confidential information, especially information that companies consider to be trade secrets.

The case, known officially as O'Grady vs. Santa Clara Superior Court, docket number H028579, can be found at the Court of Appeals website.

In the traditional journalism world, precedents over the past 30 years have been set in everything from the Pentagon Papers and Watergate to Barry Bonds' dietary supplement regimen that possession of things such as classified information, trade secrets, or grand jury testimony is not illegal, even if revealing this information is.

Journalists routinely invoke their First Amendment rights to publish information, and in many states, have the additional protection of shield laws to protect them from revealing confidential sources, on the theory that lack of such protection siginificantly stifles a free flow of information and harms the public good.

However, prosecutors in criminal cases often continue to demand, especially in states lacking shield laws, that journalists reveal sources and unpublished information from their notes. Journalists occasionally go to jail defending their sources, a recent example being in the matter of leaked information about CIA operative Valerie Plame.

The Apple Asteroid issue has not yet heated up to the point of threatening anyone with jail, yet no one would underestimate the seriousness with which companies protect their trade secrets and the potential criminality involved in revealing them.

SYS-CON Media has been an aggressive promoter of blogging activity in recent months, with more than a dozen prominent bloggers routinely featured on the company's home page and thousands of other bloggers registered to blog within the company's various i-technology publications.

This policy has seemed to enable a very open and free flow of information and opinion about all aspects of the emerging Web 2.0 age, whether the bloggers are talking about overarching issues such as Open Source, trends such as SOA, languages such as Java and the Three Ps, tools and frameworks such as JSON and Struts, or even personal asides on the quality of specific trade shows or company announcements.

As West Coast Bureau Chief for SYS-CON, and a person who grew up in a newspaper family, I have been involved in numerous discussions with numerous bloggers, traditional journalists, and traditional journalists who are also bloggers. My personal view sides with the bloggers, that they do, in fact, have the same rights as any journalist.

Those who argue against this say that bloggers typically don't have the fact-checking discipline or multi-source tradition that is ingrained in traditional journalists, that they feel that they can say whatever they want to say without having to pass muster with the editors or specific policies found in traditional news organizations.

But we have been on a slippery slope since TV journalism added a glibness and sloppy aggressiveness to reporting that horrifies most print journalists. Looking back even further, one finds major news organizations such as, say, Time Inc. and the Los Angeles Times bringing brutally biased viewpoints to their so-called reporting during the first half of the 20th century. Looking back even further, one can hardly call the viciously political and personal scandal sheets common to the days of the Founding Fathers as anything resembling the "objective" journalism that people often call for today.

(I won't tackle the "objective" issue in this column, as this is a big issue that presupposes that human beings have some sort of widely shared, identical ability to interpret what they see and hear. )

So it seems to me that bloggers have the same rights as anyone to report on a story, using whatever source material they see fit. The readersphere will determine their place in the blogosphere. There are no educational or license requirements to become a journalist. In fact, traditional newsrooms of the immediate post-WWII era were routinely filled with high school graduates who could gather information, write about it clearly, and withstand the heat that inevitably came.

Today, bloggers are probably more educated and more opinionated than the traditional journalists of yore. They are probably less thorough and certainly less restricted than traditional journalists of today in what they can cover--remember, traditional journalists work for The Man, and usually have very specific story assignments and parameters within which they must work (or be out of a job and seek their next meal from, say, a blog).

But bloggers are as protected, in my opinion, as traditional journalists from corporations and governments that want to give them a second-class seat solely because they are bloggers.

The real fun will begin when bloggers are routinely hauled into court for libel because of something stupid or sloppy (or both), or perhaps plagiarized, that they may have unwittingly published, secure in the knowledge that as "real" journalists, they are now free to rant and rave as they see fit.

Because the flip side of this coin is that today's traditional journalism did not spring up overnight--the fact-checking disciplines and tacit limits on injecting too much opinion in a piece of reportage exist based on hard lessons learned. Although U.S. libel laws are less harsh than those found almost anywhere else in the world, it is a reality for traditional journalists that whenthey publish something, they had better get the story right and had better leave the personal observations about someone's mental health or family ancestry out of the story, or they may find themselves out of a job and into a court.

The Asteroid bloggers have apparently not bungled the job, and good for them. My guess is that not everyone in the blogosphere will be so careful.