The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Saturday, March 05, 2005

Apple: the blogger rights frontier

The Santa Clara Superior Court will supply a steer on the question of blogger's rights when Judge James Kleiberg delivers his ruling in Apple v Does next week.

Apple is claiming it's entitled to discovery from various online sites in an effort to discover the source of a leak about a planned product improvement [1].

The key distinctions between this case and the infamous Plame-Miller-Cooper case (February 16) are
  1. Apple's is a civil, not a criminal case: the DC Circuit opinion (quoting from the Zerelli case [2]) made a sharp distinction between the two: a constitutional reporter's privilege might exist for civil cases, but not for criminal; and

  2. California provides a generous shield law in California Evidence Code § 1070 - but one evidently aimed at professional journalists [3]. A key question in fashioning a Federal reporter's privilege - or in justification of a refusal so to do - is whether a privilege founded either in the First Amendment or in the Federal court's power of rule-making could legitimately distinguish between professionals and other.

My understanding is that some or all of the parties against whom Apple has moved for discovery are, in fact, professional journalists, scribing both for online and dead-tree publications.

If the shield law covers them all, we're no further forward. But if - because some of the parties are amateur journos, or their media don't qualify as other periodical publication[s] within the meaning of § 1070 - the courts find that the shield law doesn't cover them all, then the law on bloggers ceases to be moot.

The history of the Federal privilege since Branzburg has been don't ask, don't tell (until Patrick Fitzgerald started wielding his shillelagh) - prosecutors were sparing in demanding sources and journos ultimately caved. Now, the DC Circuit Court (pending en banc rehearing - if any - or Supreme Court decision) has put the question beyond doubt, journos are, in practical terms, probably worse off than in the previous state of uncertainty.

Similarly, a finding from the California Supreme Court that bloggers are definitely not privileged under Federal or CA law might be worse than no decision at all...

  1. Apparently (means nothing to me),
    a FireWire audio interface for GarageBand, codenamed "Asteroid" or "Q7."
    Court documentation available from this EFF page.

  2. Thus:
    Although Branzburg may limit the scope of a reporter’s First Amendment privilege in criminal proceedings, this circuit has previously held that in civil cases, where the public interest in effective law enforcement is absent, that case is not controlling.
    Zerilli v. Smith, 656 F.2d 705, 711 (DC Cir 1981)

  3. The provision, as it relates to print media, applies to
    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 any person who has been so connected or employed...
    Thus the likes of Evelyn Waugh's William Boot (Scoop), who wrote a nature column for a national newspaper, would qualify.

    But there is no express limitation to professional journalists - as there is in the shield laws of some other states, I believe. Contributors to magazines produced by churches or community groups would seem to fall as naturally into the definition (though there may be caselaw to the contrary, of course).

    § 1070 dates back to 1935; there is good reason to adapt it to modern conditions. Thus, a contributor whose material appears on a newspaper's website, but not in its dead-tree version, should surely be covered.

    Of course, it's precisely such an interpretation that might be identified by the judiciary as setting the law on a slippery slope at the bottom of which lies the scabrous pajamahadeen...

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