Yes, the First Amendment Applies to “Blogs”

by on May 28, 2006 · 18 comments

EFF reports that a California appeals court has thrown out Apple’s demands for Apple Insider and PowerPage to disclose their sources. As I wrote last year about a different but closely related case, I think it’s a little bit strange that mainstream media reports are describing these as “blogger” cases:

Yet upon closer examination, it’s hard to see what the fuss is about. If anything, the incident reveals more about mainstream journalists’ condescending attitude toward their upstart online competitors than it does about law or technology.

Think Secret is not a “blog.” It is a commercial, advertisement-supported online magazine. It’s run by a college student, and is therefore smaller and less polished than online magazines like Slate or Salon. But the First Amendment’s protections aren’t limited to slick publications with large staffs. Some of the Founding Fathers, after all, were prolific pamphleteers, hardly more polished than Think Secret.

The same is true of Apple Insider and PowerPage. They’ve been in business since before the term “blog” entered our lexicon, and their format is closer to online magazines than it is to blogs.

Not that it matters from a legal point of view. In its decision, the court makes it clear that the law makes no distinctions among journalists based on size or professionalism:

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 freedom of the press isn’t a special privilege that applies only to government-recognized journalists. Everyone who’s engaged in the collection and dissemination of newsworthy information is protected. There’s nothing new about any of this, but it’s good to see the courts affirm that the rules don’t change just because journalism is happening on the Internet instead of the printing press.

  • Steve R.

    While this is an important victory, this is only one aspect in the larger picture of our society’s descent into corporatism. Though this judgment establishes (in California anyway) the right journalists to report news, it does not address the full scope of how corporations seek to stifle the release of information that they may not appreciate.

    Specifically, I am thinking of product testing and the publication of those results. Back in 2001, Ed Foster (then of InfoWorld) wrote: “SPEAK NOW, or forever hold your peace. Because the next time you try to speak, you may need Microsoft’s permission. As Cringely readers are already aware, Microsoft recently prevented an independent lab from publishing benchmark results by using a term in the SQL Server license that says the user “may not disclose the results of any benchmark test … without Microsoft’s prior written approval” to threaten the lab with legal action.” (http://www.infoworld.com/articles/op/xml/01/04/16/010416opfoster.html)

    A cursory Internet search did not reveal the outcome of any lawsuits on this issue; perhaps the corporate lawyers of Microsoft, Apple, and Oracle have successfully stifled independent benchmark reporting through intimidation. Tim, in his paper “Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act” nicely summarized this: “To protect free speech, we should be skeptical about any law that gives companies the opportunity to threaten those who criticize their products.”

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    While this is an important victory, this is only one aspect in the larger picture of our society’s descent into corporatism. Though this judgment establishes (in California anyway) the right journalists to report news, it does not address the full scope of how corporations seek to stifle the release of information that they may not appreciate.

    Specifically, I am thinking of product testing and the publication of those results. Back in 2001, Ed Foster (then of InfoWorld) wrote: “SPEAK NOW, or forever hold your peace. Because the next time you try to speak, you may need Microsoft’s permission. As Cringely readers are already aware, Microsoft recently prevented an independent lab from publishing benchmark results by using a term in the SQL Server license that says the user “may not disclose the results of any benchmark test … without Microsoft’s prior written approval” to threaten the lab with legal action.” (http://www.infoworld.com/articles/op/xml/01/04/…)

    A cursory Internet search did not reveal the outcome of any lawsuits on this issue; perhaps the corporate lawyers of Microsoft, Apple, and Oracle have successfully stifled independent benchmark reporting through intimidation. Tim, in his paper “Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act” nicely summarized this: “To protect free speech, we should be skeptical about any law that gives companies the opportunity to threaten those who criticize their products.”

  • http://www.blindmindseye.com MikeT

    I cannot support Think Secret being left off the hook. They aided and abetted a violation of a NDA which had no public interest behind it. The point of shield laws was to provide a “whistle-blower” protection for journalists, to help them in public interest cases. The same applies to national security cases. Why is it suddenly a first amendment issue when a CIA/NSA employee or contractor tells a journalist the same things that if they published under their own name would get them no first amendment protection? If a CIA analyst violated their security clearance, they’d be in prison with few first amendment defenders. If a journalist takes that information and reports it, suddenly it’s no longer a NDA or national security issue. Sounds like journalists are protected uniquely, in an undue manner by the first amendment.

  • http://www.blindmindseye.com MikeT

    I cannot support Think Secret being left off the hook. They aided and abetted a violation of a NDA which had no public interest behind it. The point of shield laws was to provide a “whistle-blower” protection for journalists, to help them in public interest cases. The same applies to national security cases. Why is it suddenly a first amendment issue when a CIA/NSA employee or contractor tells a journalist the same things that if they published under their own name would get them no first amendment protection? If a CIA analyst violated their security clearance, they’d be in prison with few first amendment defenders. If a journalist takes that information and reports it, suddenly it’s no longer a NDA or national security issue. Sounds like journalists are protected uniquely, in an undue manner by the first amendment.

  • A. Scott Crawford

    Here’s an interesting link to a history of Apple’s OS’s:

    http://www.kernelthread.com/mac/oshistory/

    Apple’s certainly starting to act like MS. I suppose the ipod success has gone to their heads.

    I couldn’t speak for others, but I’ve spent a heck of a lot of time over the years on various Mac OS and hardware/firmware bugs and I suspect that the lawyers don’t know how their own development staff and debuggers operate. This is certainly an issue given the Intel swich, as Apple’s dual boot machine hit the stores with the platform compatability patch available only as a beta version. I’d guess this story is a case of the higher ups scrambling to shift blame for sloppy release coordination over to the technical staff…

    Aside from the obvious points mentioned (blogs are self published journals, and as such qualify as public domain), the only possible case Apple would have would be if the journalist bloggers were given access to privledged information only after agreeing to explicit conditions in return. This happens a lot in journalism… I’ll give you story x y or z, which you’ll benefit from, but only if you let me clear your copy before you run it. Obviously Apple can’t “require” or “demand” a legal right to be told how some random person learned a FACT… they can only claim a contract was breached or a crime was committed. Or I suppose they could claim libel if they could demonstrate material harm AND intent… which they can’t. Pretty open and shut.

    I’d suggest that Apple did bloggers a favor by getting the medium recognized as a print medium in a court case. Of course the downside of blogs having a legal standing as public press mediums is that bloggers will have to print retractions and pay damages if they get nailed with a libel suit.

  • A. Scott Crawford

    Here’s an interesting link to a history of Apple’s OS’s:

    http://www.kernelthread.com/mac/oshistory/

    Apple’s certainly starting to act like MS. I suppose the ipod success has gone to their heads.

    I couldn’t speak for others, but I’ve spent a heck of a lot of time over the years on various Mac OS and hardware/firmware bugs and I suspect that the lawyers don’t know how their own development staff and debuggers operate. This is certainly an issue given the Intel swich, as Apple’s dual boot machine hit the stores with the platform compatability patch available only as a beta version. I’d guess this story is a case of the higher ups scrambling to shift blame for sloppy release coordination over to the technical staff…

    Aside from the obvious points mentioned (blogs are self published journals, and as such qualify as public domain), the only possible case Apple would have would be if the journalist bloggers were given access to privledged information only after agreeing to explicit conditions in return. This happens a lot in journalism… I’ll give you story x y or z, which you’ll benefit from, but only if you let me clear your copy before you run it. Obviously Apple can’t “require” or “demand” a legal right to be told how some random person learned a FACT… they can only claim a contract was breached or a crime was committed. Or I suppose they could claim libel if they could demonstrate material harm AND intent… which they can’t. Pretty open and shut.

    I’d suggest that Apple did bloggers a favor by getting the medium recognized as a print medium in a court case. Of course the downside of blogs having a legal standing as public press mediums is that bloggers will have to print retractions and pay damages if they get nailed with a libel suit.

  • http://www.techliberation.com/ Tim

    Mike,

    An NDA is a contract. People aren’t bound by contracts to which they’re not a party, and I don’t think there’s any crime called “aiding and abetting breach of contract.” Apple may believe that the journalists in question obtained their information from someone who broke an NDA, but they can’t be sure. And it would set a horrible precedent if we started requiring journalists to disclose their sources on the mere suspicion that the source may have broken a law or contractual commitment.

  • http://www.blindmindseye.com MikeT

    So… why bother enforcing NDAs at all now? Has Apple ever acted on something like this when it was pure crap? What do you do if ThinkSecret admits that they were told by someone who broke the NDA? It’s just stupid to allow journalists this protection. The point of shield laws is to protect sources when there is a public interest. There was no public interest, only fame and fortune for ThinkSecret, in this case. I have no problem with forcing ThinkSecret disclose the identity of their source since there was no public good behind the leak.

  • http://www.techliberation.com/ Tim

    Mike,

    An NDA is a contract. People aren’t bound by contracts to which they’re not a party, and I don’t think there’s any crime called “aiding and abetting breach of contract.” Apple may believe that the journalists in question obtained their information from someone who broke an NDA, but they can’t be sure. And it would set a horrible precedent if we started requiring journalists to disclose their sources on the mere suspicion that the source may have broken a law or contractual commitment.

  • http://www.blindmindseye.com MikeT

    So… why bother enforcing NDAs at all now? Has Apple ever acted on something like this when it was pure crap? What do you do if ThinkSecret admits that they were told by someone who broke the NDA? It’s just stupid to allow journalists this protection. The point of shield laws is to protect sources when there is a public interest. There was no public interest, only fame and fortune for ThinkSecret, in this case. I have no problem with forcing ThinkSecret disclose the identity of their source since there was no public good behind the leak.

  • enigma_foundry

    Mike T.: What extremely narrow test have you created to determine that there was no public interest here?

    I believe the disclosures in this case were in the public interest, and that interest in the case of jopurnalism should, I feel, very broadly interpreted.

    To require people who are not party to a NDA to abide by terms of a NDA would lead us straight to corporate fascism…

  • http://www.blindmindseye.com MikeT

    Don’t play legal gnostic, enigma_foundry. You don’t have to be one of the nine nazgul on the SCOTUS to know what a public interest case. It’s not a matter of opinion, but fact. Public interest violations are when you are reporting something that may be injurious to the life, liberty or property of others, or criminal conduct by the powers that be. They are called public interest because they are sufficiently compelling to be worth violating individual rights and/or the law over. Breaking a NDA to report that Apple was using power supplies that could burn down your home would be an example. Reporting that Apple is going to make a media center edition of the Mac Mini is not.

    Now let’s turn it right back around on your argument. To render Apple incapable of pursuing cases that are clearly not public interest NDA violations would be to render a severe blow to contract law. Contract law, as you probably know, is the basis of our civil court system and the way that private parties seek non-regulatory solutions to their problems and work together. Every blow that you make against contract law, is another entire area that the legislature must start passing new laws to cover. If these companies cannot get private solutions, they will seek legislative solutions. Since the courts have ruled that the first amendment does not apply to trade secrets, it is quite clearly not in our interests to make corporate America seek regulatory solutions to civil problems. Your “corporate fascism” will only be realized when capitalist solutions like contract law have been thrown on the trash heap by the populists who think that bloggers have an absolute right to publish.

  • http://enigmafoundry.wordpress.com eee_eff

    Mike T.: What extremely narrow test have you created to determine that there was no public interest here?

    I believe the disclosures in this case were in the public interest, and that interest in the case of jopurnalism should, I feel, very broadly interpreted.

    To require people who are not party to a NDA to abide by terms of a NDA would lead us straight to corporate fascism…

  • http://www.blindmindseye.com MikeT

    Don’t play legal gnostic, enigma_foundry. You don’t have to be one of the nine nazgul on the SCOTUS to know what a public interest case. It’s not a matter of opinion, but fact. Public interest violations are when you are reporting something that may be injurious to the life, liberty or property of others, or criminal conduct by the powers that be. They are called public interest because they are sufficiently compelling to be worth violating individual rights and/or the law over. Breaking a NDA to report that Apple was using power supplies that could burn down your home would be an example. Reporting that Apple is going to make a media center edition of the Mac Mini is not.

    Now let’s turn it right back around on your argument. To render Apple incapable of pursuing cases that are clearly not public interest NDA violations would be to render a severe blow to contract law. Contract law, as you probably know, is the basis of our civil court system and the way that private parties seek non-regulatory solutions to their problems and work together. Every blow that you make against contract law, is another entire area that the legislature must start passing new laws to cover. If these companies cannot get private solutions, they will seek legislative solutions. Since the courts have ruled that the first amendment does not apply to trade secrets, it is quite clearly not in our interests to make corporate America seek regulatory solutions to civil problems. Your “corporate fascism” will only be realized when capitalist solutions like contract law have been thrown on the trash heap by the populists who think that bloggers have an absolute right to publish.

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