APPLE PLAYS THE HEAVY. The New York Times today catches up with Apple Computer's boneheaded lawsuit against three websites that traffic in rumors about new products that the company has in the works. Apple is trying to force the website operators to turn over their confidential sources, arguing that trade secrets had been illegally disclosed.
The principal issue: do shield laws that protect journalists from having to give up their sources protect bloggers as well? According to the Times and to this invaluable backgrounder by the Online Journalism Review's Mark Glaser, the answer - under California law - appears to be a qualified "yes." That is, state law would appear to get around the sticky problem of defining who's a journalist by instead protecting the act of journalism.
At a time when it's becoming almost impossible to say who's a journalist and who isn't, that's as it should be. Unfortunately, that doesn't mean the bloggers are home free. The courts, after all, have become notably reluctant to allow press-pass-bearing journalists from major news organizations to protect their sources, never mind bloggers.
SOX TALK. The Phoenix's Mike Miliard is in Florida following the Red Sox. He's also started a weblog called - simply enough - Sox Blog. Check it out.
I think the Apple bloggers, and their lawyer(s), are using the wrong precedents.
Court interpretations of shield laws are so much in flux that I don't think any defendant or witness can depend on them in any close circumstance.
Instead I think the proper defense to the subpeonas is in the prior restraint decision by the Supreme Court in the Pentagon Papers case in the early 1970's.
The Court ruled that, under the First Amendment, there can be no prior restraint on publication.
Theoretically, the bloggers could be liable for civil (but likely not criminal) action after-the-fact, but if the blogging individuals themselves didn't steal anything, there's really no case.
Remember, Daniel Ellsberg *did* steal the Penatgon Papers but he was never convicted.
Post a Comment