1. Focus
SAN FRANCISCO DAILY JOURNAL FRIDAY, JUNE 23, 2006 PAGE 7
To Shield or Not? Court Won’t Define ‘Legitimate’ Journalism
By Leila Narvid The Electronic Frontier Foundation ap- that instigated the news-gathering process.
A federal bill sponsored by Sen. Chris Dodd,
pealed the court ruling, and last month the
I
D-Conn., which contains a broad definition
6th District Court of Appeal issued a unani-
n a recent interview about Apple
of journalist that would protect bloggers
mous decision striking down the subpoe-
Computer’s lawsuit against Web site
and other online independent journalists,
nas. See O’Grady et al. v. The Superior Court
publishers and their e-mail providers for
uses intent as its litmus test for legitimate
of Santa Clara County, H028579. Overturn-
allegedly exposing Apple’s trade secrets,
journalism. The bill defines a journalist as
ing the lower court’s ruling, the three-judge
Apple’s Chief Executive Officer Steve Jobs
a person who “engages in a gathering of
panel ruled that both PowerPage editor Ja-
commented: “The thing is today is that
news or information,” and who also “has
son O’Grady and Apple Insider’s publisher
everyone can be a jour-
the intent, at the beginning of the process of
nalist.” and editor-in-chief, who writes under the
gathering news or information, to dissemi-
Indeed, a May 26 pseudonym of Kasper Jade, should be pro-
nate the news or information to the people.”
California appellate court tected under both the California shield law
Intent is difficult to establish, and virtu-
ruling grappled with a and the First Amendment.
ally every blogger, or chat-room participant,
question that everyone According to the court, Apple failed to
could say in good faith that he or she intend-
from amateur bloggers demonstrate that it cannot identify the
ed to “disseminate information” in some
to arbiters of law were sources of the challenged information by
asking: What constitutes form to an audience, even to an audience of
means other than compelling petitioners to
Constitutional journalism — and to what one reader. The appellate court offers some
disclose unpublished information.
extent should journalists guidance on determining proper candidates
The appellate court’s ruling focused on
Law
be protected by state for shield law protection, but the standard it
three primary aspects: 1) that the federal
shield laws and the First Amendment? sets forth is nebulous. “[T]he open and
Stored Communications Act protects pri-
In 2004, the Web sites Apple Insider and deliberate publication on a news-oriented
vate e-mail from civil subpoenas; 2) that the
PowerPage published an account of an website of news gathered for that purpose
conditional constitutional privilege against
Apple product alleged to be in development. by the site’s operators” is the publication
compulsory disclosure of confidential
Asteroid is an add-on device that would al- of news, while “the deposit of information,
sources barred the subpoenas; and 3) that
low users to plug musical instruments into opinion or fabrication by a casual writer to
Apple’s attempt to subpoena information
Apple computers and create digital audio any open forum such as a news group, chat
from the Web site publishers violated the
recordings. room, bulletin board system, or discussion
California shield law. sources of the information are insufficient. ism. “We can think of no workable test or
The Web site posted verbatim excerpts of group” may (but need not necessarily be)
The 69-page appellate decision devotes Apple argued that the petitioners do not principle that would distinguish ‘legitimate’
technical specifications for the new product something else. The appellate court does
several pages to an analysis of the Califor- fall into any of the categories of people from ‘illegitimate’ news. Any attempt by
and a reproduction of a copyrighted blue- not discuss qualities traditionally linked to
nia shield law and its application to blog- protected by the shield law and that they [c]ourts to draw such a distinction would
print of the design. Apple sued the anony- journalism — veracity, objectivity and edi-
gers. The California shield law is embodied “are not members of any professional imperil a fundamental purpose of the First
mous sources of the information as Doe torial control — as requisites for “legitimate
in Article I, Section 2(b) of the California community governed by ethical and profes- Amendment, which is to identify the best,
defendants. In an effort to find out how the journalism.”
Constitution and in California Evidence sional standards.” Apple also argued that most important, and most valuable ideas not
information was leaked, Apple subpoenaed There is a gray area between the “deliber-
Code Section 1070; it specifically protects the shield law does not apply to Internet by any sociological or economic formula,
several Web site publishers and their e-mail ate publication” of “news gathered for that
any “publisher, editor, reporter, or other publications. rule of law, or process of government, but
providers. The Electronic Frontier Founda- purpose” and the “deposit of information”
person connected with or employed upon through the rough and tumble competition
tion, a nonprofit advocacy and legal organi- by a “casual writer.” That gray area is
a newspaper, magazine, or other periodical
A
ccording to Apple, the petitioners of the memetic marketplace.”
zation with the stated purpose of preserving bound to expand as traditional journalism
publication or by a press association or wire were engaged not in “legitimate jour- The court also emphasized the legitimacy
free speech rights in the digital age, filed a continues to cede ground to online media
service, or any person who has been so con- nalism or news” but only in “trade of bloggers as bona fide news reporters: “In
petition for a protective order in Santa Clara and blogging. As legislators try to set na-
nected or so employed.” secrets misappropriation” and copyright no relevant respect do they appear to differ
County Superior Court, arguing that the tional standards that must be met before the
The law states that these individuals violations. The appellate court held that the from a reporter or editor for a traditional
information sought by Apple was entitled to issuance of a subpoena to a member of the
cannot be compelled “to disclose, in any shield law is intended to protect the gather- business-oriented periodical who solicits
protection under the First Amendment and news media, they will have to grapple with
proceeding as defined in [Evidence Code] ing and dissemination of news to the public or otherwise comes into possession of
the California shield law. the question of what constitutes “legitimate
Section 901, the source of any information and that the petitioners were engaged in confidential internal information about a
In March 2005, Judge James Kleinberg journalism.”
procured while so connected or employed such activity. The fact that the Web sites re- company.”
issued a ruling in favor of Apple, holding While the appellate court declined the
for publication in a newspaper, magazine printed verbatim copies of the information, Although the court stated that it declined
that Apple’s interests in protecting its trade “invitation” to take up that question and
or any other periodical publication or for without any commentary or editorializing, the “implicit invitation to embroil [itself] in
secrets outweighed the public interest in as more individuals seek the protection
refusing to disclose any unpublished infor- did not justify a denial of the shield law. The questions of what constitutes ‘legitimate
the information. of state — and one day maybe federal
mation obtained or prepared in gathering, court stated that the public policy behind journalism,’” this inquiry is at the heart of
— shield laws, lawmakers will be forced
receiving or processing of information for the shield law is to protect the gathering the appellate court ruling. The Apple case
Write to Us to specifically enumerate the categories of
communication to the public.” In 2000, of news for dissemination to the public. forces the question of whether bloggers
individuals who fall within the shield laws’
the shield law was expanded to add further Limiting the shield only to traditional print are journalists, and what it means to be a
The Daily Journal welcomes your comments. protections.
protections: A subpoena to a journalist must media would impede the purpose of the law. journalist. When shield laws were written,
Please send letters to the editor by e-mail to
provide at least five day’s notice, and a judge If the law explicitly applies to television and it was undoubtedly easier to define the class
letters@dailyjournal.com or by mail to Amy
in a criminal trial who holds a journalist in radio, there is no reason not to extend it to of people they protected. Eighty years later, Leila Narvid, an associate with Sideman &
Kalin, Legal Editor, the Daily Journal, 44
the Internet. the waters are muddier.
contempt for asserting protection under the Bancroft in San Francisco, concentrates her
Montgomery Suite 250, San Francsico, CA
The appellate court refused to distinguish The test often used by courts in determin-
shield law must provide written reasons practice on civil litigation, including complex
94104. Please include your name, city and a
blogging from journalism, or to propose ing shield law protection is whether there
why the shielded information is of mate- business litigation on behalf of individuals,
phone number where you can be reached.
parameters for what constitutes journal- was an intent to disseminate information
rial assistance in the trial and why alternate partnerships and corporations.