Today in the 6th District Court of Appeals, Apple
lost its bid to force an online news publisher to reveal its source[s].
From the decision:
We decline the implicit invitation to embroil ourselves in questions of what constitutes "legitimate journalis[m]." The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news. 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 memetic marketplace.
EFF
sums up the background of the case and its significance:
The case began when Apple Computer sued several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product to online news sites PowerPage and AppleInsider. As part of its investigation, Apple subpoenaed Nfox -- PowerPage's email service provider -- for communications and unpublished materials obtained by PowerPage publisher Jason O'Grady. A trial court upheld the subpoena.
But Friday, the court said that O'Grady is protected by California's reporter's shield law, as well as the constitutional privilege against disclosure of confidential sources. The court also agreed with EFF that Apple's subpoena to email service provider Nfox was unenforceable because it violated the federal Stored Communications Act, which requires direct subpoenas of account holders.
"In addition to being a free speech victory for every citizen reporter who uses the Internet to distribute news, today's decision is a profound electronic privacy victory for everyone who uses email," said EFF Staff Attorney Kevin Bankston. "The court correctly found that under federal law, civil litigants can't subpoena your stored email from your service provider."
The appeals decision reverses the original ruling, which avoided the journalist/blogger distinction and found:
"Movants contend they are journalists. They make this claim because they seek the protection of the privilege against revealing their sources of information. Defining what is a "journalist" has become more complicated as the variety of media has expanded. But even if the movants are journalists, this is not the equivalent of a free pass. The journalist's privelege is not absolute. For example, journalists cannot refuse to disclose information when it relates to a crime."
The (mainly) blogger Amicus brief can be found here, which was filed on behalf of Jack Balkin, Michael Froomkin, Joshua Micah Marshall, Markos Moulitsas, Glenn Reynolds (InstaPundit), the Center for Individual Freedom, Groklaw, Reporters without Borders, Jay Rosen, Eugene Volokh and others.
Apple had argued thusly, that bloggers and online publishers "are not members of any professional community governed by ethical and professional standards" and, so, have no grounds for falling under the shield's protection. However, California state law says very clearly that its shield law protects:
"[a] 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[, or a radio or television news reporter or other person connected with or employed by a radio or television station], or any person who has been so connected or employed"
As far as where bloggers fit in specifically, the appeals ruling said:
However, even were we to decide--which we do not--that Web sites such as petitioners' cannot properly be considered "magazines" for purposes of the shield law, we would still have to address the question whether they fall within the phrase "other periodical publications." That phrase is obviously intended to extend the reach of the statute beyond the things enumerated (newspapers and magazines). The question is how to delineate the class of unspecified things thus included within the sweep of law.
More from the ruling:
"[W]e can see no sustainable basis to distinguish petitioners from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience."
"If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial."
My question for those legal minds out there, how does California's shield law compare to most states'? Is it, as it seems to me, much more comprehensive? Does this set the table for similar protection in the future for bloggers elsewhere in state and federal law?