Originally posted 2005-01-12 00:00:00. Republished by Blog Post Promoter
“The Macintosh maker obtained a court order to subpoena the AppleInsider and PowerPage sites after it filed a suit on Dec. 13 in a Santa Clara court. Apple said it wanted the names behind a post entitled, ‘Does 1-20,’ which allegedly leaked the information in question.
The EFF countered saying bloggers’ sources are protected by the same laws that protect sources providing information to journalists. ‘Bloggers break the news, just like journalists do.
They must be able to promise confidentiality in order to maintain the free flow of information,’ EFF Staff Attorney Kurt Opsahl said in a statement. ‘Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society.'”
I don’t agree. The press shield laws are and always have been a legal fiction. They were promulgated after Watergate to carve out a narrow exception for a “the press” to the general rule that civic duties — such as the requirement to respond to subpoenas — apply to everyone. They are creatures of a time when mainstream journalism reached its apex of power and truly asserted itself as the Fifth Estate, an unelected power with the prerogative to topple governments. So now we are seeing the artificial barriers of institutional journalism fall.
But if every blogger is a journalist, why then every — every — everybody’s a “journalist.” So now all I need is to register with Blogger — a 15 second process — and then post whatever I stole, or my best friend stole, or (better yet) what I paid him to steal from someone else — to be immune to subpoenas? (Thankfully no one has said anything about “information wanting to be free” yet, have they?)
And really, does a “free society” really depend on getting out Apple’s latest product developments ahead of when they want it to get out? Not even a little. Even if PowerPage is a blog, do bloggers want to push this point as far as the EFF is doing and demand full press shield privileges? I’ll tell them the same thing I tell trademark attorneys who keep push, push, pushing their ever-growing bundle of rights on the rest of the world: Be careful what you wish for.
Courts are there to draw lines. Let’s see where they draw this one.
UPDATE: The California appeals court sides with the bloggers:
The May 26[, 2006] decision stated that PowerPage.org and AppleInsider are protected under First Amendment rights as well as by Californias own reporters shield law. . . .
“We can think of no workable test or principle that would distinguish legitimate from illegitimate news,” the judges wrote in their decision.
“Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the mimetic marketplace.”
Well, I must admit, I had not counted on the “mimetic” angle. The decision is here.