Who Gets to Play Journalist?

An academic question becomes a pressing legal issue.


Apple is one of the few companies large and intriguing enough to have attracted its own large subcategory of professional journalism. MacWorld competes with MacAddict and at least a half-dozen other glossies; Amazon.com lists 712 books under the category "Apple Mac," and true obsessives can cap off a day of Steve Jobs?related media consumption by listening to online radio shows like The Mac Night Owl.

As you might expect from an iconic, publicly traded consumer technology company with 11,000 employees and a cult following, there are quite a few Web sites dedicated to Apple as well: A Google search on "Mac blog" yields more than 20,000 results. Some of the more ambitious weblogs solicit anonymous tips from inside Apple's Cupertino, California, headquarters, and pounce gleefully on any scrap of information about future product releases.

One energetic site–O'Grady's PowerPage, run by Jason O'Grady at powerpage.org–obtained some specs of a new Apple gadget called Asteroid, which allows musicians to plug instruments directly into their computers, and posted a detailed company drawing of the device in November 2004. Apple responded by suing 25 unnamed John Does (and not O'Grady), claiming violation of California's Trade Secrets Act and asking O'Grady's e-mail provider, NFox, to reveal who leaked the data. O'Grady and two other sites that published information about Asteroid, Think Secret (thinksecret.com) and AppleInsider (appleinsider.com), received subpoenas demanding all Asteroid-related communication.

They responded by asking a San Jose Superior Court judge to block NFox from handing over the e-mails, on the grounds that they were protected from discovery by the California Shield Law, one of 31 statutes nationwide shielding reporters from being held in contempt of court for refusing to divulge information.

So the perennial panel discussion question–are bloggers journalists?–seemed to be getting its first high-profile legal test. At a time when an unprecedented number of American journalists are facing prison for protecting sources, this seemingly arcane question is suddenly no longer academic.

There are fewer than 1 million professional journalists in this country. There are an estimated 8 million bloggers–and potentially 280 million more. Extending a limited profession-based privilege, one otherwise confined to priests, lawyers, and therapists, to the entire population could make the whole nation impervious to court orders. But limiting the privilege puts the government in the dicey position of deciding who is and who isn't a journalist.

It's a legal conundrum that drills down to the very core of the First Amendment, which protects "the freedom of speech" for all citizens but also singles out "the press." Supreme Court jurisprudence on journalist privileges has been both limited and confusing.

It's no wonder, then, that the Apple case elicited some heavy media breathing. "Are Bloggers Journalists?" a Business Week Online headline asked on March 8, a few days after Judge James Kleinberg hinted that he would side with the computer maker. "A judge didn't think so, thus his ruling that three blogs must reveal their sources. The decision has sparked a debate and may chill such sites."

Actually, despite the dominant pre-trial storyline, Kleinberg's ruling didn't affect the blogger/journalist legal debate at all. It instead fell under the rubric of another, far less sexy but arguably more ominous encroachment on the First Amendment: trade secret law.

Forty-four states now enforce some version of the Uniform Trade Secrets Act, first drafted in 1979 by the National Conference of Commissions on Uniform State Laws. According to the NCCUSL, the law classifies as "trade secrets" company information "of commercial value" that "is not generally known to others and is not readily ascertainable by proper means." According to an excellent March 28 article in the Mac-oriented publication MWJ, those laws and related court rulings have established that "trade secrets are information, and information is property." Publishing or even sharing that information, then, is legally tantamount to abetting theft.

An outlet that publishes leaked trade secrets "potentially faces liability–perhaps including punitive damages–and an injunction," writes Eugene Volokh, a constitutional scholar at UCLA, in the Summer 2003 Houston Law Review.

"And this can apply to a whole range of important information….Trade secrets aren't just customer lists or formulas for soft drinks….A trade secret is defined as 'any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.' This may cover confidential business plans, marketing strategies, and other descriptions of how a business, charity, church, educational institution, or even government agency operates or intends to operate."

It's not just the law that's stacked against publishers of sensitive corporate–or government–information. Journalism's culture of professionalization has stayed the news industry's own hand.

In May 1998, for example, the Cincinnati Enquirer ran a damning 22-article investigation of the Latin American activities of Chiquita Banana, the company whose checkered history south of the border originally inspired the term banana republic. The series, which alleged bribery, cover-ups, and other malfeasance, was never challenged on the facts. Yet the paper retracted the whole package, apologized, and handed Chiquita a $14 million settlement after the company falsely accused reporter Mike Gallagher of "stealing" 2,000 internal voice mails. (He had actually obtained them from a willing inside source.)

Gallagher was summarily fired. Far from defending him, the nation's journalism reviews and media critics joined Chiquita and the Enquirer in denouncing his "ethics." ("On the question of stealing voice mail," Pulitzer Prize?winning Los Angeles Times media critic David Shaw told Editor & Publisher, "you don't do it.") No major newspaper, to my knowledge, ever followed up on Gallagher's reporting.

Some of the same journalism-establishment voices who were happy to place limits on publishing corporate information then are trying now to restrict journalist shield laws to a professional fraternity that–unlike those dirty bloggers–shares their reportorial values and mores. "I don't think the reporter's privilege to maintain confidential sources should be granted to such practitioners of what is at best pseudo-journalism," Shaw huffed in a March 27 column. "If the courts allow every Tom, Dick and Matt who wants to call himself a journalist to invoke the privilege to protect confidential sources…that would ultimately damage society as much as it would the media."

Now Rep. Mike Pence (R-Ind.) is proposing a federal shield law. It does not specify whether weblogs will be covered. It does cover the publisher of a "periodical," leaving enough interpretative wiggle room for Volokh and others to conclude that blogs would qualify, but Pence spokesman Matt Lloyd says, "It doesn't cover bloggers per se unless they're part of an incorporated Web site, like a news organization." The issue, he says, will likely be addressed more specifically in the fall, when Congress is expected to debate the bill.

Should bloggers be able to protect their sources in front of a judge? Is federal law the appropriate remedy to journalists' being jailed for contempt? I lean toward yes and yes, for constitutional, anti-governmental, and personal reasons. I think the First Amendment should be applied as broadly as possible, I want the government to have less power to compel? information from citizens, and I want maximum latitude in my work.

But you can also argue that in the balance of free expression, the legalities just don't matter that much. Free speech seems to become more legally constrained each year, yet free expression continues to boom. If bloggers are left unshielded, that will only serve to enlarge an already conspicuous paradox: that the people with the most press freedom seem the least willing to use it.?