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Web Sites Covered by the California Journalist's Privilege:

So holds the California Court of Appeal in Apple's lawsuit based on a Web site's publication of leaked Apple trade secrets. (The site is O'Grady's PowerPage.) The court was interpreting the California Constitution's journalist's privilege provision, which protects (empasis added) "[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service[, or a radio or television news reporter or other person connected with or employed by a radio or television station], or any person who has been so connected or employed" from being held in contempt for failing to reveal the name of a source.

The court said, among other things, that:

  1. The California journalist's privilege isn't limited to printed media.

  2. The privilege applies to the publication of raw data — even with little explicit editorial commentary — and not just to the reporter's own words about that data.

  3. Though "periodical publication" might be read as requiring publication at fixed intervals (like the way most newspapers generally publish, but unlike the way blogs publish), in this context it simply refers to "all ongoing, recurring news publications while excluding non-recurring publications such as books, pamphlets, flyers, and monographs." (The court also noted that weblogs might also be considered "magazines," but concluded that it didn't have to resolve this because of its broad reading of "periodical publication."

  4. Bloggers are also covered by the journalist's privilege that California courts (and many other courts, though not all courts) have inferred from the First Amendment. This federal privilege, unlike the state privilege, can be trumped by a showing that the confidential information is necessary and not obtainable through other means (a showing that the court found wasn't adequately made here); in this respect, the federal privilege is narrower than the state privilege, but it's also broader in other respects (for instance, it provides more protection than just immunity from contempt sanctions), so the federal privilege remains relevant in California.

  5. The courts ought not limit the privilege to "legitimate" journalists, as opposed to mere bloggers (who, Apple argued, "are not members of any professional community governed by ethical and professional standards"). The court wrote, "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."

It seems to me that the court got this absolutely right. Under the California journalist's privilege, all those who communicate to the public in a relatively regular way (as opposed to speaking only occasionally, or speaking only to a few friends) are protected, and are covered by the language "newspapers, magazines, or other periodical publications." Some state statutes are narrower, applying, for instance, only to "newspapers." But the California provision is written broadly, and should be read broadly, without any textually unjustified, hard-to-administer, or illogical distinctions.

Congratulations to O'Grady's legal team, including the Electronic Frontier Foundation and (representing amici) the Center for Internet & Society, for their success in this case. I was one of the amici (bloggers and others) on whose behalf the Center filed its brief.

Denise Howell (Bag and Baggage) has more.

Related Posts (on one page):

  1. Subpoenas to Service Providers for Contents of Stored E-Mail:
  2. Web Sites Covered by the California Journalist's Privilege:
abb3w:
I'm not sure that the court decision even goes so far as to indicate how to distinguish "occasional" from "regular" publication; there's probably a dividing line somewhere that a future decision will have to thrash out. Is a public weblog protected if it's updated only once a week? At random during the week? Once a month? Once a year? Is a weblog protected at its first publication, or only after it has evidenced that it is a periodic, not a one-time publication. Suppose materials (such as the Pentagon Papers) are recieved between when the weblog is planned and when it first begins publication — are they still protected by the privelege? What if the materials are the trigger?

Would the Federalist papers, if they were published as pamphlets, have qualified as a periodical under this rule? And, if a descendent of Madison were to put out a single new Federalist Paper of his/her own today, would that then also qualify?

Not that I think this is a bad decision, but it is a can of worms, really.
5.26.2006 6:07pm
Bruce Hayden (mail) (www):
The periodical portion seemed a bit ambiguous - which may mean that there is no strict standard here in CA. I seem to remember something in the early part of the decision, in the facts portion, about it being published twice a day, but then later, in the actual analysis portion, the court seemed to say that it was published when new stuff became available.

Interestingly, during the Sony DRM stuff late last year, someone suggested that the EFF joining in a suit was invariably its death - that they had a reputation for losing almost all of their cases that were ultimately litigated (the Sony class action suits were settled). Here, the EFF actually was on the winning side, doing what they were designed to do.

Good work to all who participated.
5.27.2006 12:56pm
pdxnag (mail) (www):
Why not describe the class of protected persons and publications by way of describing what it is not intended to cover? Like this: any non-private communication is covered.

Apple could implement a policy of giving everyone (employees only of course) lie detector tests and see how that flies. Would that level of intrusion on individual liberties or rights be lessor or greater than trying to obtain a court ruling that would be nearly tantamount to extending their reach, with a long arm, to the world at large?
5.28.2006 5:37am