No significant difference exists between the news-gathering techniques used by traditional reporters and the publishers of Apple news sites Think Secret, Apple Insider, and PowerPage. But there is a tremendous legal chasm dividing them: The California law protecting confidential sources shields only broadcast media and "periodical publications"--not the Web.
Apple claims that the Web writers are not "legitimate members of the press" when revealing details about forthcoming products. Those actions, though, describe exactly what good journalists do--writing articles that serve their readers, rather than the parochial interests of a single corporation.
The ability of Bob Woodward and Carl Bernstein to protect Deep Throat led to their famous series of Washington Post articles about the Watergate break-in and subsequently led to President Richard Nixon's downfall. At the time, Nixon's Committee for the Re-election of the President tried to compel Woodward and Bernstein to divulge their sources through a lawsuit.
Apple is trying to win the argument that Richard Nixon lost. It took its theories to a California state court on Friday and appears to have convinced a judge to require the three news sites to divulge their sources.
The eventual outcome of the case may turn on the wording of the California Constitution. It protects anyone currently or previously employed by "a newspaper, magazine, or other periodical publication, or by a press association or wire service." That shields sites like News.com, Salon.com, and Slate.com--typically staffed by ex-newspaper reporters--but probably doesn't help bloggers or the Apple news sites.
More than 30 states have shield laws, but none specifically protects online scribes. New York's statute is one of the broadest. But even that law is limited to someone "professionally affiliated for gain or livelihood with such medium of communication."
Exact wording matters. Last year, U.S. District Judge C. Lynwood Smith ruled that Alabama's shield law doesn't protect Sports Illustrated because the statute mentions only newspapers and broadcasters. Trying to squeeze a magazine into that definition, Smith wrote, "strains the commonly understood meanings of those words."
An offline advantage?
Vigdor Schreibman learned firsthand about the legal wall separating officially recognized journalists and online scribes.
Ten years ago, the publisher of the online Federal Information News Syndicate asked the Congress' press gallery to renew his press credentials. What Schreibman expected to be a routine renewal was denied by the gallery, without providing any reason, in January 1996.
"He was struggling against a press cartel that I felt was reluctant to admit journalists who was using new techniques," says Marc Rotenberg, Schreibman's lawyer. "This is an area where the traditional media needs to be more generous of spirit. The traditional media should shed its license-like privilege and throw their support behind the bloggers who are seeking the same First Amendment rights as anyone else."
Schreibman tried to overturn the decision by the press gallery, run by a committee of traditional news organizations. First he appealed to the speaker of the House. Then he filed a First Amendment lawsuit that went all the way to the U.S. Supreme Court without success.
Credentials are a bit easier to come by today, thanks to prominent examples like last year's political conventions. But it's still no slam dunk: The conservative news site WorldNetDaily.com had to threaten a First Amendment lawsuit for the press gallery to acquiesce by a 3-2 vote with dissents from representatives of Knight Ridder and the Columbus Dispatch. Oddly, Jeff Gannon enjoyed far more success.
Another area of legal favoritism lies in federal election law, which Federal Election Commission member Bradley Smith warned about in an interview. Newspaper and TV endorsements aren't counted as political campaign contributions because of a press exemption in federal law.
Because the exemption extends only to a "broadcasting station, newspaper, magazine or other periodical publication," Smith said that bloggers may be out of luck. "It becomes a really complex issue that would strike deep into the heart of the Internet and the bloggers who are writing out there today," he said.
Two recent bills would create a federal shield law primarily for offline journalists. One proposal, called the Free Speech Protection Act and sponsored by Sen. Christopher Dodd, D-Conn., extends to "electronic means of disseminating news or information to the public." The other, championed by Sen. Richard Lugar, R-Ind., is narrower and seems to be limited to traditional media.
Crafting a definition is hardly easy and runs the risk of de facto government licensing. A federal appellate judge warned last month that any attempt to draw clear lines between journalists and bloggers will be terribly difficult.
One law review article (available here in PDF format) by Linda Berger, a journalist-turned-law-professor, suggests a definition of whether someone is "engaged in the process of journalism."
That seems like a reasonable working definition that avoids the problem of authorizing the government to decide who is and who isn't a journalist. It may not be perfect, but it would be better than the second-class treatment that bloggers and Web publishers suffer from today.
Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.
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Does the California Constitutional freedom of the press outway the legal non disclosure contract signed by the Apple employees who leaked proprietary secret information to the Internet BEFORE that Apple information was released to the public by Apple?
If this was Microsoft/Intel/Sun/Adobe/IBM/Dell/HP,instead of Apple,what would they be pursuiting legally?
Would CNET think they were behaving like Nixon?
Is CNET the same as Internet Rumor Sites or are they more like CNN?
(I say this as someone who's used Apple computers for 22 years and believes their hardware and software to be by far the best around.)
I'd say that I'm on side of Apple in this issue.
Have I developed product, and MY employee had leaked info - I'd definitely fired him ASAP. Period.
Does the California Constitutional freedom of the press outway the legal non disclosure contract signed by the Apple employees who leaked proprietary secret information to the Internet BEFORE that Apple information was released to the public by Apple?
If this was Microsoft/Intel/Sun/Adobe/IBM/Dell/HP,instead of Apple,what would they be pursuiting legally?
Would CNET think they were behaving like Nixon?
Is CNET the same as Internet Rumor Sites or are they more like CNN?
(I say this as someone who's used Apple computers for 22 years and believes their hardware and software to be by far the best around.)
I'd say that I'm on side of Apple in this issue.
Have I developed product, and MY employee had leaked info - I'd definitely fired him ASAP. Period.
Judge Kleinberg doesn't seem to be questioning whether any of the three bloggers is "a legitimate member of the press." He did not rule on that question on March 3, from what I've read. Indeed, he asked, "Isn't there a balance ... between trade secrets and protections of journalists?"
It appears that Kleinberger assumes bloggers ARE journalists, and is only considering whether they should nonetheless be compelled to reveal their sources in this case because "Theft and use of trade secrets is a crime."
Is Kleinberger ruling on whether a journalist can be compelled to reveal sources in furtherance of a criminal investigation?
The judge in the Sports Illustrated case did just this when deciding whether the magazine qualified as a "newspaper." I don't expect the California judge to do any differently. Regardless, though, my point is that the law should be clarified so there's no room for argument.
Judge Kleinberg doesn't seem to be questioning whether any of the three bloggers is "a legitimate member of the press." He did not rule on that question on March 3, from what I've read. Indeed, he asked, "Isn't there a balance ... between trade secrets and protections of journalists?"
It appears that Kleinberger assumes bloggers ARE journalists, and is only considering whether they should nonetheless be compelled to reveal their sources in this case because "Theft and use of trade secrets is a crime."
Is Kleinberger ruling on whether a journalist can be compelled to reveal sources in furtherance of a criminal investigation?
The judge in the Sports Illustrated case did just this when deciding whether the magazine qualified as a "newspaper." I don't expect the California judge to do any differently. Regardless, though, my point is that the law should be clarified so there's no room for argument.
prosecute their disloyal employees who break the Apple Non-
Disclosure Contract by giving away trade secrets.
Why should they continue to be employed by Apple if they broke
their legal non-disclosure contract?
Freedom of speech does not mean you can shout FIRE in a movie
theatre and start a stampede...THAT'S against the law. All
Constitution freedoms have caveats. America is a check &
balance system of rights & laws.
prosecute their disloyal employees who break the Apple Non-
Disclosure Contract by giving away trade secrets.
Why should they continue to be employed by Apple if they broke
their legal non-disclosure contract?
Freedom of speech does not mean you can shout FIRE in a movie
theatre and start a stampede...THAT'S against the law. All
Constitution freedoms have caveats. America is a check &
balance system of rights & laws.
qualified media should be objective--reporting the facts.
Writing that Apple is trying to "strong-arm" and making others
"second-rate citizens", makes it look like Apple is guilty of doing
something wrong. The court may yet rule in their favor. If it is
the author's belief that Apple is wrong, yet the law says they are
correct in their case, then the issue should be with the law, not
Apple. Only time will tell.
The problem is that we bland reporting doesn't always impress
news editors or readers.
I am all for protecting the rights that support our freedom of
speech, but I also believe in the rights that protect intellectual
property. The court must decide where the line between the two
are drawn.
You can argue with my facts or whether my opinion is right or wrong, but arguing with the fact that there's an opinion expressed does seem a bit silly.
- Biased Reporting
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by
March 9, 2005 3:01 PM PST
- This article, like many in the media, is biased. Reporting by
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Reply to this comment
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- opinion expressed in a column...
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by declan00
March 11, 2005 1:43 PM PST
- Damien: This is a column, not a news article. One of the primary purposes of a column is to express an opinion; in your words, be "biased."
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See all 28 Comments >>qualified media should be objective--reporting the facts.
Writing that Apple is trying to "strong-arm" and making others
"second-rate citizens", makes it look like Apple is guilty of doing
something wrong. The court may yet rule in their favor. If it is
the author's belief that Apple is wrong, yet the law says they are
correct in their case, then the issue should be with the law, not
Apple. Only time will tell.
The problem is that we bland reporting doesn't always impress
news editors or readers.
I am all for protecting the rights that support our freedom of
speech, but I also believe in the rights that protect intellectual
property. The court must decide where the line between the two
are drawn.
You can argue with my facts or whether my opinion is right or wrong, but arguing with the fact that there's an opinion expressed does seem a bit silly.