Last Friday, Santa Clara County Superior Court Judge James Kleinberg ruled in favor of Apple in its case against three independent journalists. Apple claimed that it was entitled to subpoena the email of the three online publications to determine who leaked the alleged trade secrets. The three indie journalists claimed privilege from disclosing their sources under the First Amendment and California’s shield law.
Judge Kleinberg deftly ducked the question of whether or not those who publish online are journalists:
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 privilege is not absolute. For example, journalists cannot refuse to disclose information when it relates to a crime….”
While clearly acknowledging the importance and value of the First Amendment, Judge Kleinberg goes on to recognize that the First Amendment applies to speech on the Internet and that the primary purpose of the guarantee is to prevent prior restraints on publication. He ruled, accordingly, that “the issue of prior restraint is not before the Court,” and cited the California Supreme Court’s decision in DVD Copy Control Association v. Bunner that “the First Amendment does not prohibit courts from incidentally enjoining speech in order to protect a legitimate property right. ... It is something of a mystery as to how free and open debate is frustrated by offering property protection to trade secrets. ... The mere fact that DVD CCA’s trade secrets may have some link to a public issue does not create a legitimate public interest in their disclosure.”
Judge Kleinberg’s ruling stated that “the United States and California Supreme Courts have underscored that trade secret laws apply to everyone regardless of their status, title or chosen profession. The California Legislature has not carved out any exception to these statues for journalists, bloggers or anyone else.”
One of the most disturbing aspects of Judge Kleinberg’s ruling is a passage stating California’s trade secret statutes reflect a “strong commitment to the protection of proprietary business information,” and that the “statutes also support the compelling interest of disclosure which may, in the proper civil case, outweigh First Amendment rights.”
That proprietary business information trumps the First Amendment is shocking but certainly not surprising. Not in this climate that began in 1886. That’s when the US Supreme Court is said to have decided that corporations are persons under the Fourteenth Amendment. Except the US Supreme Court—nor any other US court—has never made any such decision. From then on, corporations were granted the rights and freedoms of private citizens with none of the responsibilities. Not for nothing, that case was also centered in Santa Clara County, California.
As a result of the 1886 case, the idea of corporate personhood gained a foothold in the culture. The idea that a corporation—an artificial construct—created by a government granting a corporate charter and owned by shareholders, is a person is an absurd legal fiction perpetrated by the powerful and wealthy to consolidate their power and wealth.
So, here we have the 120-year-old legal fiction of corporate personhood resting on a court decision that never happened. What is that, like legal fiction cubed?
Seemingly all a corporation has to do to prevent information about it from being published, based on Judge Kleinberg’s decision, is claim “trade secret” protections on every thing it does.
As I’ve written numerous times in the past, Sidney Jourard made a compelling discovery about human behavior: it’s all based on maintaining or enhancing the self-image. Corporate America has bastardized Jourard’s astute observation and warped the law to fit its collective self-image: all law is based on maintaining or enhancing the corporation. Judge Kleinberg is just playing along.
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