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.