Citizens’ journalism loses the Apple case… big time

Citizens’ journalism loses the Apple case… big time

: So the judge decided that Apple can go ahead and subpoena the the sites that reported on its business to find out their sources. Which is to say that bloggers are not protected by California’s shield law. Which is to say that this judge just said that bloggers aren’t journalists. Which is to say that we just started a program of certifying official journalists in this country. Which is to say that we lose. Big time.

Said the judge:

“Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, (the enthusiast sites) are doing nothing more than feeding the public’s insatiable desire for information,” Kleinberg wrote.

Hello: “the public’s insatiable desire for information” is also known as news. Or it was.

ZDNet adds:

In the ruling, the judge largely brushed off the question of whether the publishers were journalists and therefore protected from facing contempt charges for refusing to divulge sources under California’s shield law. “Defining what is a ‘journalist’ has become more complicated as the variety of media has expanded,” he said. “But even if the movants are journalists, this is not the equivalent of a free pass.”

That aspect of the decision will likely be viewed with dismay by traditional media outlets, which themselves often publish confidential information about corporate plans.

But it is also viewed with dismay by all the rest of us.

What if you tomorrow find information about a scandal in government or in industry or in a church… whatever. Now a judge will decide whether that’s really news or just the insatiable desire.

And once that happens, then a government official can refuse to give you access to a press conference — at, say the White House — because you’re not really news.

One major problem with this entire discussion is that it judges who is a journalist rather than what is a journalistic act. Informing the public is journalism. Period.

And the problem with all this is that — just like the FCC on indecency — this puts government in the position of judging speech. And when one form of speech is seen as inferior to another form when it comes to such things as legal protections — whether the First Amendment or local shield laws — then that becomes a form of censorship.

The judge continued:

“The public has had, and continues to have, a profound interest in gossip about Apple,” the judge ruled. “Therefore, it is not surprising that hundreds of thousands of ‘hits’ on a Web site about Apple have and will happen. But an interested public is not the same as the public interest.”

And now this judge is defining the difference. That is dangerous.

Laura Sydell — a reporter whose work I greatly respect on NPR — emails this:

I was looking at your site and I wanted to point out to you that the California case didn’t actually deal with the blogger issue. Arguably it’s worse. The judge found that no journalist –blogger or mainstream — has the right to protect a source who was breaking the law by revealing a trade secret. He never actually decided on the issue of bloggers versus mainstream journalists. Just thought you’d want to know for the record.

Yes, that’s most troubling is that the judge decided what news – no matter who reports it — is worthy of protection. It’s that line about “the public’s insatiable desire for information” that’s so troubling. He doesn’t like the insatiable part; he thinks there is some limit on the definition of news. That is precisely what is so troubling. And, so, yes: When a reporter for a mainstream outlet reports on something that the judge thinks is too much from the insatiable desire — too long-tail — then that doesn’t deserve protection, but other “news” does? Yes, it is troubling for all journalism.

I’m clearly not saying it well but my concern is that the court should not be deciding what is news and what isn’t, what is journalism and what isn’t, who is a journalist and who isn’t. That is what troubles me here.

: Eugene Volokh also writes about this.

Keep in mind that citizens’ media is not just weblogs. It is also forums. It will be podcasts and vlogs. It will be impossible to define media. Media is speech and speech is media.

: UPDATE: Buslaw blog says I got this completely wrong. The judge specifically did not try to distinguish between journalists and bloggers, Buslaw says.

Yes, counsel, but didn’t he try to distinguish between the kinds of information and he called the kind bloggers get reporting that only “satisfies the public’s insatiable desire for information” and he found that unworthy of protection.

I’ve been arguing that we should not worry about whether a person is a journalist but whether an act is journalism. So I got my knickers in knows above on just this point. So to try again: He did not say who is a journalist. But didn’t he decide what is journalism? Didn’t he decide whether this act is worthy of the label journalism and thus worthy of protection? And if you don’t practice journalism, you’re not a journalist, eh?

He also says, again, that “the interested public is not the same as the public interest.” That, too, is about him judging the act of journalism; he decides what is worthy to be called journalism. That is what troubles me.

: SATURDAY UPDATE: Dan Gillmor (who sees the ducking of the blogger-journalist divide as a small favor) adds this:

Reporting on business, if this bad ruling is upheld on appeal, will be a great deal harder in the future. Companies will simply slap “trade secret” protection on everything they do, and any reporter who gets a scoop on anything the company doesn’t want the public to know about will be under a legal threat.

  • http://michaelzimmer.blogspot.com/ Michael Zimmer

    What if you tomorrow find information about a scandal in government or in industry or in a church… whatever. Now a judge will decide whether that’s really news or just the insatiable desire.
    I think the legal distinction is different than you make it out to be. Its not “news” vs. “insatiable desire.” The judge didn’t rule that activities related to “news” in the most general sense has absolute protection. Rather, he compared the “public’s insatiable desire for information” (one type of “news”) to “health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials” (a different type of “news”). This latter category, arguably, has a much more compelling “public interest” than the former, and might deserve special consideration.

  • FC

    SELF-CORRECTING BLOGOSPHERE CHECK:
    “In the ruling, the judge largely brushed off the question of whether the publishers were journalists and therefore protected from facing contempt charges for refusing to divulge sources under California’s shield law. “Defining what is a ‘journalist’ has become more complicated as the variety of media has expanded,” he said. ‘But even if the movants are journalists, this is not the equivalent of a free pass.’”
    Will the self-correcting blogosphere correct Jeff Jarvis? Will he ignore this monumentous error in his statement, which directly contradicts his own link? Tune in in five days to find out, when Jeff publishes a correction after the post has scrolled off the front page!

  • http://michaelzimmer.blogspot.com/ Michael Zimmer

    The judge: “But an interested public is not the same as the public interest.”
    JJ: “And now this judge is defining the difference. That is dangerous.”
    How? Decades of jurisprudence has established what is and is not “in the public interest” from a legal-protection standpoint.

  • Jamie

    but who is Jeff Jarvis? He doesn’t seem to understand the case at all.

  • Brian H

    Dare we hope for an appeal? It seems as though this ruling is almost carte blanche to suppress discussion of a company’s affairs and/or possible misbehavior. Where is the burden of proof here? I think there’s much more to come, legally and otherwise, before all this plays out.

  • Dan

    Apple’s internal product development is no one’s business but its own. Their CFO conducts regular briefings for stockholders and analysts, plus the company complies with all SEC regulations. The idea that some 19 year-old hack soliciting secrets and then publicizing them to line his wallet is in any way comparable to public interest journalism is totally absurd.
    Remember, one of the accused sites published confidential diagrams of a future Apple product. Since when is this OK? If bloggers could disseminate trade secrets with impunity, a company’s ability to innovate could be compromised.
    So glad the court struck a blow for real freedom. And Jeff, quit fetishizing the act of blogging. You’re getting a little wide-eyed weird for me.
    Dan

  • http://myblahg.blogspot.com Robert McClelland

    I think it needs to examined what the ramifications might be from extending the same protections given to journalists to every Tom, Dick or Harry with a website before actually doing it.

  • http://xenoverse.blogspot.com/ Fcb

    Eugene Volokh (link) has a different take on this:
    “The judge did not deal with any possible subpoenas against the bloggers. He thus didn’t decide whether bloggers are entitled to be treated the same as other journalists, but concluded that in any event the subpoena against the service provider — which the service provider isn’t contesting — is constitutionally permissible.”

  • EverKarl

    This case is legally different from the ThinkSecret case, where the question of bloggers as journalists is squarely presented. But Jeff is right to be noticing that this issue is going to be presented repeatedly as blogging moves forward. Unfortunately, it seems that a lot of people have been misinformed into the belief that the institutional press has greater rights than any Tom, Dick or Harry. This is not true under the Constitution. It is true with respect to shield laws, the FEC’s “media exemption,” etc. But if a judge, a legislature, or administrative agency has the power to define “the press” to confer a benefit, there is no conceptual barrier to define it to license it, or punish it, either. Jacob Weisberg has it just about right at Slate.

  • http://www.lafn.org/~zeppenwolf zeppenwolf

    Thank you Dan.
    JJ: “…the court should not be deciding what is news and what isn’t.”
    Fair enough. But when a crime is committed, it doesn’t suffice to say “it’s news”. Crime is crime, (dammit), and I for one think our society has gone a bit too far in respecting the rights of the accused over the rights of the victims, (including, but not limited the victim of society as a whole– see also Roper vs. Simmons).

  • http://journals.aol.com/ceklundesq/TheOtherShoe/ charlie eklund

    In search of a silver lining, I found this:Laura Sydell reads blogs.
    As every journalist should.
    Good for her.

  • cw

    Jeff,
    What these people did is no different than someone stealing an exclusive article from one of your magazines (in your dead tree days) and publishing it before you. I’d guess you’d want to know which of your employees sent the article to another outlet, whether that outlet was full of journalists or not.
    cw

  • Brian

    I think we need to keep in mind that the court case is not about journalists vs. bloggers and who gets what kind of protection. The case is really about bloggers who entice Apple employees to violate their non-disclosure agreements.

  • http://www.elflife.com/ carsonfire

    The left is *still* ranting about Gannon not being a “real reporter” because of an interview with Ari Fleischer, who compared Gannon with Helen Thomas, who doesn’t ask questions anymore, but just uses her time to deliver partisan speeches.
    Ari made a good point that there are a matter of course divergent people allowed in representing many fringe groups. This is what I suspected was the case when the Gannon story first appeared; but the left has to beat down right wing opinion and activity in particular because they seem to find free speech for others a frustrating impediment to forcing their will on everybody else.
    And so it’s now a little hard to be sympathetic with bloggers who demand the same protections as “real reporters”. If Gannon, working for a small right-wing website isn’t a “real reporter”, then bloggers posting stolen trade secrets certainly don’t rate any protections that “real reporters” are afforded.
    Either a citizen can be a journalist or he can’t. It’s certainly hypocritical to pick and choose who can and can’t be a citizen journalist based on party ideology.

  • http://www.drcookie.blogspot.com JennyD

    Jeff, I think you’re on thin ice here. Let me ask a couple of questions:
    Would the New York Times, or even the Star-Ledger to get more local, have published the information as it appeared on the websites? Did the bloggers ask for comment from Apple? In other words, was the work of the bloggers reliable in the hours before they published?
    There are so FEW journalistic rules, and one of them is that you talk to the people you are writing about for comment, and the other is that you have your work vetted by someone with a more critical eye, when it’s this sensitive.
    Did the bloggers follow those two rules? (I’ll be honest, I don’t know…)

  • http://RuthCalvo Ruth

    Jeff, take a look for a minute at what a judge is actually supposed to do, which is interpret existing law. I think we all should be aware that this judge most likely is sticking strictly to his actual role. And personally, I prefer that kind of judge. When the law is reviewed, and if it is rewritten to give greater sway to any group of journalists, then the judge can interpret differently. But a judge shouldn’t be writing law.
    There is an aspect that any judicial decision should be reviewed by succeeding judges as established precedent, and as such should be carefully weighted by the judge to see if there is future potential for misuse.
    Didn’t look so closely at the whole decision to have an opinion on this particular finding. But give credit to the judge that he probably did. If not, there is a review process, called appeals.

  • http://www.scrappleface.com Scott Ott

    With admittedly limited knowledge of this case, it seems to me that the issue is the distinction between news/gossip disseminators (be they journalists, bloggers or some hybrid) and criminals/thieves/spies. I didn’t think Robert Novak should have been allowed to conceal who outed Valerie Plame based on his status as a “journalist.” Nor does it seem reasonable to protect accomplices in corporate espionage (assuming such spying is illegal) from facing the bar of justice.
    I agree with commenters who said there should not be two classes of info-citizens — journalists and the rest of us. Whether you write for Knight-Ridder or for your own amusement, if publishing (weblishing) proprietary corporate information is illegal, then it’s illegal for all.

  • http://michaelzimmer.blogspot.com/ Michael Zimmer

    Ruth: take a look for a minute at what a judge is actually supposed to do, which is interpret existing law. I think we all should be aware that this judge most likely is sticking strictly to his actual role.
    Exactly! This is a county circuit judge, whose job is to follow the law. Period. Leave it to make new law.

  • http://www.glcq.com paul_lukasiak

    First off, I’m not sure that what was revealed by the bloggers in question actually constitutes a “trade secret” as defined under the relevant law: to wit—
    (9) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
    (A) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
    (B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

    First, I don’t think that what the bloggers revealed (basically, the same information that would be available to everyone quite soon) is what the “trade secrets” law was designed to protect— how products work, not the existence of such products.
    Secondly, I see no evidence that the the information disclosed “derives economic value…from not being known to the general public.” If anything, the disclosure enhanced the economic value of the “secret” by creating a buzz about the new product that did not exist prior to the release of the secret.
    The judge in the case also pre-judges the question of whether release of the information constitutes a criminal act ( there is no license conferred on anyone to violate valid criminal laws ). The purpose of the discovery lawsuit was a civil matter–apple is suing to find out who released the information to the bloggers, and the judge is declaring that the bloggers are guilty of a criminal infraction without a trial and conviction of the crime. IMHO, absent such a trial and conviction, the violation of the bloggers right to privacy is completely unjustified.

  • http://michaelzimmer.blogspot.com/ Michael Zimmer

    No, Paul, the judge is not declaring the bloggers guity of a criminal infraction. By saying “there is no license….” does not infer that he feels that is in deed the case here. In fact, the judge says “The court makes no finding as to the ultimate merits of Apple’s claims, or any defenses to those claims. Those issues remain for another day.”

  • http://michaelzimmer.blogspot.com/ Michael Zimmer

    Jeff: But didn’t he decide what is journalism? Didn’t he decide whether this act is worthy of the label journalism and thus worthy of protection? … he decides what is worthy to be called journalism.
    Um, no, read the ruling, Jeff. The judge is saying that some information (ie, trade secrets) is illegial to publish. It matters not whether it comes from a journalist, a blogger, or some combination of the two. The judge doesn’t really care – he’s not saying one is better than the other or deserves more protection than the other. It could’ve been the NY Times who published the information, and the ruling would be the same. The point is the type of information, not its source or method of publication.
    From the ruling: “whether he fits the definition of a journalist, reporter, blogger or anything else need not be decided at this juncture for this fundamental reason: there is no license conferred on anyone to violate valid criminal laws.”

  • Scott Velders

    In my (non-legal) opinion this particular case has nothing to do with journalism and everything to do with the right to have a trade secret. Just as a pawn shop owner is party to a criminal act if they accept something that he/she knows or suspects is stolen property, a blog is party to a crime if they publish what they know or suspect to be a trade secret. No newspaper can legally publish a stolen trade secret and neither can a blog. In an industry where a few-months’ jump on the competition is critical, advance product knowledge is highly damaging. Apple is within their rights to investigate this crime– their private property has been stolen.

  • Carrick Talmadge

    Jeff: I’m with the growing majority here. I went back and read the entirety of the judge’s ruling. It addresses a number of issues brought up in the comments, include the question “trade secret” as it pertains to California Law, and many other issues I’ve seen people bring up here and elsewhere. I would encourage everybody who wants to comment on it to at least scan through the decision.
    The judge clearly put a lot of thought into his write up, and if you are going to criticize him, the least you can do is carefully review his decision first. You would expect the same of him were it your work being criticized.

  • http://www.buzzmachine.com Jeff Jarvis

    Carrick:
    That’s why I’m linking to those who disagree with me. Lord knows, I’m no lawyer.
    If all he had said was that taking trade secrets was illegal and not protected, I could see other issues but I’d grant that he is not dealing with anything related to citizens’ media or perhaps journalism.
    But from the news coverage, I, too, zeroed in on those quotes I keep repeating in which he judges some reporting to be more valuable — more protected, more journalistic — than other reporting. That is what still troubles me.

  • http://michaelzimmer.blogspot.com/ Michael Zimmer

    No, Jeff, he’s not saying some reporting is more valuable or protected or journalistic. He’s saying that some information that is reproted is more protected. For example, whistleblower information that is in the public interest might have more legal protection than trade secrets.
    Again, this is irrespective to whether said information is published via the WSJ or Wonkette. You’re really trying to find a fight here, but there’s none to be found. This ruling is about the type of information, not the type of reportage.

  • anonymouse

    No, Paul, the judge is not declaring the bloggers guity of a criminal infraction. By saying “there is no license….” does not infer that he feels that is in deed the case here. In fact, the judge says “The court makes no finding as to the ultimate merits of Apple’s claims, or any defenses to those claims. Those issues remain for another day.
    I’m sorry, but I don’t understand how you can say this. The judge is allowing Apple Corporation access to the personal correspondence of a private citizen in a civil dispute—and justifies it by saying that the shield law does not pertain to criminal conduct. He may not be deciding the merits of Apples civil suit, but he does appear to have already tried and convicted a private citizen, and is denying that citizen his right to privacy as a result.

  • http://RuthCalvo Ruth

    anonymouse:
    Your email is already subject to subpoena if any party files suit against you. From my experience in the law, your email does not qualify as personal correspondence. It is on the internet.
    Love your ‘name’.

  • Mac

    This is new ground. With all due respect for bloggers’ value, they are not journalists. I’m glad the judge ruled so, even though its application in this case may have stung.
    I am a journalist. Most, not all, bloggers are amatuers. I’ll be the first to say I have deep concerns about MSM, for example, its maligning of Gary Webb and the deliberate blackout on election fraud.
    But, bloggers swing the pendulum too far the other way. This new legal ground needs to be fine-tuned until we meet some balance, I think.
    Many well-meaning and ambitious bloggers simply don’t understand the level of training and experience that makes a journalist. It IS a learned, skilled trade. We have significant legal education to ensure we know how to report responsibly within the law. We know the difference between a charge and an indictment and an arraignment, etc., and how much merit to give to each. We know “alleged” won’t protect you in a costly libel suit, and that the use of “for” instead of “in” can cause you to lose.
    We vet the facts and, as a rule of thumb, require at least 3 first-hand sources to confirm the same thing unless we have verifiable documentation. We don’t publish hearsay; bloggers do all the time!
    And JennyD made a strong point in that we do NOT report news with negative impact without offering opportunity for both sides to give their best take on the facts the story will reveal.
    I favor interpretive journalism, which I feel bloggers like John at Americablog do well, over traditional objective journalism, but it takes even more specialization to do interpretive journalism well (which is why America adopted the formulaic objective style).
    What we have in bloggerland is what was considered yellow journalism a century ago. Before you get offended, look at how history proved this stage important to a vital democracy, though.
    Laws cannot be made to apply only to one case. The judge’s interpretation of law, on new ground here, will end up being used to apply to bloggers like those who “broke” the Rathergate crap and the Swiftie Liars. Those GOP operatives, like Pretty Boy Gannon, are not journalists and I resent how they exploit our good names and hard-earned reputations to make lies appear to be reporting. I certainly think it is dangerous to give them cover of the shield law — and I think Novak’s credentials should be given another look, frankly; being paid by a supposedly real publication shouldn’t alone be the test, either, IMHO. I want Jarhead or Jughead, or whatever blogger name that GOP lawyer hid behind, to reveal who really gave him that alleged “expert analysis” in short hours the middle of the night after Rather’s broadcast. The lather of Rathergate wasn’t journalism in the least — and MSM got burned badly when they put Jarhead on A1 and so now run scared. Five careers were ruined by irresponsible use of bloggers as media.
    The law holds journalists accountable and, in return, gives a small shield-law privilege in relative circumstances. We earned it and meet the test daily; bloggers didn’t earn it, and as a whole do not meet the test of accountability. Are the guys in their PJs prepared to lose everything they own in a libel suit, especially now that bankruptcy won’t relieve them?

  • Harold

    Don’t be so upset, and don’t get in a time wasting argument about the precise meanings of some word or phrase in the judge’s decision. By the next decision, those phrases and meanings will change anyway. The law is, after all, a living, breathing thing that changes with each new decision.
    Now that this has started, the result is completely preordained. In the not too distant future, judges will decide everything for you. In fact, they now decide who you can hire, who you can rent your property to, where and when you can allow people to smoke on your own property, so this is just one more step. You (some of you, anyway) approved of the previous steps, why balk now?
    Just relax and enjoy the freedom from worry that comes from having no decisions worth making.