ARTS & FARCES internet

When is the written word not afforded the full force protection of the First Amendment? When that written word is conveyed in a container that a judge deems to be not worthy of such protection. And that’s just what Santa Clara County (California) Superior Court Judge James Kleinberg did in a preliminary ruling, stating that online publishers should not enjoy the same protections as legacy big-J Journalists under US law.

While the ruling is not final, the final ruling is expected as soon as next week, it is a clear indication of which way the wind is blowing in the court.

The case finds two online publications—Apple Insider and PowerPage—which published information about forthcoming Apple products, under the computer-maker’s corporate thumb to disclose where they obtained the source information. The publications argue that they should not have to disclose their sources under the protections afforded by the First Amendment and California’s Shield Law which specifically protect journalists from being forced to disclose sources in matters in the public interest.

Kleinberg, according to Rachel Konrad, the Associated Press technology writer covering the hearing last Friday, seemed to focus on the concept of any publication—corporate or independent—having the right to publish information that could only have been provided illegally:

“Theft and use of trade secrets is a crime—a felony,” said Kleinberg, who is expected to issue a final ruling next week. “Isn’t there a balance ... between trade secrets and protections of journalists.”

Kurt Opsahl, the Electronic Frontier Foundation (EFF) attorney representing the publications, told Konrad that Apple must use other avenues—including employee depositions and email searches—to determine who leaked the information:

“Apple hasn’t taken depositions, hasn’t looked at employees’ Internet service providers and has made no effort to contact those sources,” Opsahl said. “Instead of using discovery of journalists as a last resort, they’re using discovery of journalists as a first resort.”

Apple’s attorney, George Riley, told Konrad that Apple is cognizant of the First Amendment implications of the case but questions whether the individuals involved in the online publications “are truly journalists or merely people who ‘disseminated’ information.” Riley said the material was “published verbatim and without analysis, providing little journalistic value but giving competitors information that could damage the company’s finances.”

In an era of the Bush administration or its backers having paid at least six phony journalists to “disseminate” information, presumably verbatim and without analysis, this is a very strange and dangerous tack for Apple to be taking. Dawn Chmielewski notes in her account for the San Jose Mercury News that Apple’s court filings argue that the free speech protections of the US Constitution and the California Shield Law apply only to “legitimate members of the press,” not websites. What’s perhaps most surprising with regard to this case is how little Apple has been chastised in the corporate and independent media; online and off. If this had been Microsoft squeezing journalists for sources, the story would have been quite different.

In a separate case, Nicholas Ciarelli, Harvard student and publisher of online publication Think Secret, asked Santa Clara County (California) Superior Court Judge Jamie Jacobs-May to dismiss a somewhat similar lawsuit Apple had brought against him in January. In that case Apple seeks damages for Think Secret‘s disclosure of a low-cost computer under development.

According to Laurie Flynn’s New York Times account, Ciarelli’s attorney says the Think Secret disclosure relied on information that had already been made public, not trade secrets, and did not break any laws.

As EFF attorney Opsahl told Chmielewski, “Compelled disclosure of journalists’ sources would have a devastating effect on the free flow of information. It’s the lifeblood of a functioning democracy. Therefore the courts have to understand the vital connection between the confidentiality of sources and the freedom of the press.”

As if the misguided Apple lawsuits weren’t bad enough, one of the most politicized members of the Federal Elections Commission (FEC), Bradley Smith, saw an opportunity to shoot another hole in the McCain-Feingold campaign finance reform regulation and took it. Smith, who’s been opposed to McCain-Feingold since its inception, told CNet that the law requires the Federal Communications Commission (FCC) to regulate political speech by online publishers:

The real question is: Would a link to a candidate’s page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they’re at the disclosure threshold and additional expenditures have to be disclosed under federal law.

Certainly a lot of bloggers are very much out front. Do we give bloggers the press exemption? If we don’t give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET?

This is especially disturbing in light of the just-released Pew Internet & American Life Project’s “The Internet and Campaign 2004” report which found that 75 million Americans—fully 37% of the country’s adult population—used the net to “get news, discuss candidates in emails, and participate directly in the political process.” The survey found the number of online political news consumers in the US “grew dramatically from 18% of the US population in 2000 to 29% in 2004.” Strikingly, 11% of US internet users—that’s more than 13 million people—went online to “engage directly in campaign activities such as donating money, volunteering, or learning about political events to attend.”

Finally, consider the Free Flow of Information Act (H.R. 581 / S.340), bipartisan legislation that attempts to codify a federal shield law based on Justice Department guidelines that have been used since 1973. While the law as proposed would compel testimony from journalists in criminal and civil cases under fairly narrow circumstances, it would also provide additional protection for confidential sources for corporate but not independent journalists (except those independents working for corporate entities).

Interestingly, or not, this all happens on the heels of the Justice Department’s demand for almost US$400,000 in fees for a Freedom of Information Act (FOIA) request by the People For the American Way Foundation regarding the decision to seal records of immigrants detained after the 9/11 terrorist attacks.

This much is clear: in the United States the container which conveys reportage is deemed more important than the information contained therein and we’re headed toward the very dangerous precipice of different classes (in the legal, not social, sense) of journalism and journalists based solely on the container used. Certain containers are deemed worthy of protection and others aren’t.

Revision history:

• 6 March 2005: Updated to reflect addition of Forbes link and Pew Internet & American Life Project “The Internet and Campaign 2004” report.
• 7 March 2005: CNet‘s Declan McCullagh has a great overview of various state shield laws writing that Apple is trying to win the argument that Richard Nixon lost. McCullagh goes on to point out that attempting to define who is and who is not a journalist inevitably gets uncomfortably close to de facto governmental licensing. As a solution, McCullagh points to Linda Berger’s law review article suggesting a definition of whether someone is “engaged in the process of journalism.”
• 7 March 2005: In the March/April Columbia Journalism Review cover story, Douglas McCollam does a wonderful job outlining the concepts underlying the shield laws, examines the repercussions of the Plame case, and explores the divisions in legacy media over the issue.