Bloggers and media organizations are filing amicus briefs in the Apple suit against rumour sites (my take on which is here). Paul McCleary writes, in his excellent summary of the case on CJR Daily, “One can’t help but notice that in a certain sense, Judge Kleinberg and the media types seem to be talking past each other.”
In his March 11 ruling, which is being appealed (hence the amicus briefs), Santa Clara County Superior Court Judge James P. Kleinberg ruled that Apple could go after the rumour sites for their sources. Kleinberg ruled that the question of whether the rumour sites constituted journalism was irrelevant. From his decision:
But even if the movants are journalists, this is not the equivalent of a free pass. The journalist’s privilege is not absolute. For example, journalists cannot refuse to disclose information when it relates to a crime. […] Whether [O’Grady] fits the definition of a journalist, reporter, blogger, or anything else need not be decided at this juncture for this reason: there is no license conferred on anyone to violate valid criminal laws.
In other words, your obligation to obey the law is not affected by your status as a journalist, so whether or not you’re a journalist is irrelevant.
Kleinberg also referenced the five-part test set out in Mitchell v. Superior Court (1984), which deals with whether journalists can be held in contempt if they refuse to divulge sources in civil suits. One of the tests in Mitchell is whether the public good is served by the misappropriation of trade secrets. Leaking Apple’s product information did not meet that test. Emphasizing that “an interested public is not the same as the public interest,” Kleinberg writes,
Unlike the whistleblower who discloses a health, safety, or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, the movants are doing nothing more than feeding the public’s insatiable desire for information.
(If I’m reading this stuff correctly, the Mitchell standard — which, incidentally, is cited as case law that protects journalists — effectively destroys the argument that Apple’s trade secrets are equivalent to Enron’s. Kleinberg is simply reciting the existing case law.)
The judge’s decision was narrow in focus and grounded in statute and case law; it addressed only discovery. (For more on the ruling, see Daring Fireball’s coverage, which includes a copy of the ruling in PDF format.)
The responses from the bloggers and media — essentially, that journalism is a verb, not a noun: journalists are defined by the fact that they practice journalism, not by who cuts their cheques — misses the judge’s point completely. (And, quite possibly, deliberately.) For them, it’s not a narrow question of law, it’s a broad question of identity and constitutional freedoms. The EFF’s brief, for example, asks for a newsgatherers’ privilege that does not discriminate between reporters and non-reporters. For the life of me, I can’t see what that has to do with the judge’s ruling: he specifically set that issue aside as irrelevant to the question. Recognizing them as reporters will not help them win the case, it seems to me.
So the two sides are clearly ignoring each other’s arguments. The EFF’s argument has merit, and I agree with it: journalism is a verb, and it’s practiced by everyone from the New York Times to bloggers — and, let’s not forget, by supermarket tabloids. But it’s not germane to the case.
It’s not surprising, though, that bloggers and the media would argue for extremely broad interpretation of their constitutional protections: it’s in their interest to do so. When police and security organizations ask for greater powers and fewer restrictions, it’s in their interest to do so, too, for the same reason: it makes their jobs easier. Anything that means fewer successful lawsuits against the media must be a good thing in their books.
In general, it probably is. But a free press must also be an accountable one. A press that cannot be sued for libel or copyright violation, for example, would be a force of terror that no one would dare cross.
None of which has much to do with whether rumour sites can post illegally leaked details of upcoming Apple products. The bloggers and media companies worry so much about the implications of this case that they’re losing sight of the details. It’s a bit rich to invoke the public interest to defend what is essentially tabloid journalism. Sensational details about private material where the public interest is nowhere to be found. The sort of stuff that the same media companies behind the amicus brief wouldn’t touch with a ten-foot pole on a slow news day.
But thundering about press freedoms for bloggers makes better copy than the finer points of whether a specific case meets the Mitchell standard. It’s probably indicative of how weak the sites’ case is that they’re pounding on the table instead of the facts or the law.
Rebecca Blood thinks the judge made the right decision; she doesn’t believe this is a good test case for bloggers as journalists:
This isn’t the case we want the issue decided on. We want a situation in which bloggers reveal facts that are clearly in the public interest, not just in the interest of driving traffic to their sites.
Bloggers want to talk about bloggers as journalists. It’s an important issue. It’s just not this issue.
(Caveat lector: I’m not a lawyer and I’m talking out of my ass. Unlike some bloggers, I allow for the possibility that I may be totally wrong.)