Yes, the First Amendment Applies to “Blogs”

by on May 28, 2006

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.

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