Publius' Forum

By Warner Todd Huston

According to California's Sixth Appellate court, bloggers and internet sites ARE protected under the State's "Reporter"s Shield" law. This sets a precedent that holds the internet to the same legal status as print publications. (hat-tip Hughhewitt.com)

This is good news as the status of the internet is still somewhat amorphous. Apple Computer is suing a blog site for revealing some news on Apple products that the bloggers found out before Apple released it in California. Apple is petitioning the Court to force the bloggers to reveal their sources for the product news leak.

The decision in O'Grady v. The Superior Court of Santa Clara County is a very important case for us. Following are some segments of the length decision:

We decline the implicit invitation to embroil ourselves in questions of what constitutes "legitimate journalis[m]." The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

The Court denied Apple's claims that bloggers are not covered as "reporters".

These arguments all rest on the dismissive characterization of petitioners' conduct as "posting information on a website." We have already noted the pervasive misuse of the verb "post" by Apple and allied amici. (See pt. II(E), ante.) Here they compound the problem by conflating what occurred here--the open and deliberate publication on a news-oriented Web site of news gathered for that purpose by the site's operators--with the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board system, or discussion group. Posting of the latter type, where it involves "confidential" or otherwise actionable information, may indeed constitute something other than the publication of news. But posting of the former type appears conceptually indistinguishable from publishing a newspaper, and we see no theoretical basis for treating it differently.

Beyond casting aspersions on the legitimacy of petitioners' enterprise, Apple offers no cogent reason to conclude that they fall outside the shield law's protection.

Here the Court scoffed at Apple's diminution of what bloggers and on-line site do making it seem as if we are all people stereotyped as "sitting in our pajamas in our basements" as we create our sites.

For these reasons the explicit inclusion of television and radio in the shield law does not imply an exclusion of digital media such as petitioners'. As we have noted, the electorate cannot have intended to exclude those media because they did not exist when the law was enacted. The surest guide to the applicability of the law is thus its purpose and history.

So, as far as California is concerned, the internet has as much legitimacy as print, TV or radio. this is a good sign that we will be legitimized properly as codified by law and this will help protect us from undue lawsuits.

To download a PDF of the full brief:http://www.eff.org/Censorship/Apple_v_Does/H028579.pdf