There has been much celebration in the blogosphere about a California court’s decision to extend the protection of the state’s journalism shield law to cover a number of blogs. It is indeed very good news, but there’s another aspect to this case that is getting less attention — the judgment draws a distiction between those who run web sites and those who merely comment on them.
Reversing the trial court’s decision in last year’s Apple vs. Does case, a California appeals court granted the publishers of web sites the right to claim immunity from contempt charges under California’s shield law, which protects journalists from being compelled to reveal their sources in court.
Lawyers for Apple Computer had argued that the proprietors of several web sites that publish gossip about the company were not engaged in “legitimate journalism” when they published leaked confidential information about products the company was developing. Apple was attempting to force the web sites’ publishers to reveal the sources that had passed them the secret information.
In its ruling (PDF), the California Appeals Court said:
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.
There’s no question that this is the right decision. Press freedom is a universal right in liberal democracies, not one limited to a definable class of individuals who work in a particular way. The judge is right: Defining journalism in law is dangerous.
The Electronic Frontier Foundation, which represented the bloggers and web publishers in the case called it a “huge win” for online journalists.
That’s certainly true and a Good Thing, but a careful reading of the decision shows that it includes an important caviat to extend protection only to such web sites that are genuinely reporting news in a systematic fashion.
While claiming to avoid the sticky issue of defining journalism, the court did draw a distinction between news-oriented website operators who are protected and casual visitors to an public online forum, who are not.
The judge rapped Apple for using the verb “post” to conflate publishing a news web site with such mere chatter, which may not be protected by the reporter’s shield:
These arguments all rest on the dismissive characterization of petitioners’ conduct as “posting information on a website.” We have already noted the pervasive misuse of the verb “post” by Apple and allied amici. (See pt. II(E), ante.) Here they compound the problem by conflating what occurred here—the open and deliberate publication on a news-oriented Web site of news gathered for that purpose by the site’s operators—with the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board system, or discussion group. Posting of the latter type, where it involves “confidential” or otherwise actionable information, may indeed constitute something other than the publication of news. But posting of the former type appears conceptually indistinguishable from publishing a newspaper, and we see no theoretical basis for treating it differently.
So a journalist, in California, is someone who systematically produces “news”, the production of which is the public interest that the shield law attempts to protect. It seems that this ruling offers no blanket protection for bloggers unless they regularly report news in a manner analogous to traditional news organisations — and certainly none for those merely leaving comments on others’ blogs.