Saturday 5 March 2005

the end of the free press?

THE END OF the free press? As Apple wages a court battle against bloggers, the question of “what makes a journalist?” is raised yet again to divided sectors.

Apple is in the process of suing three California-based blogs for reporting on trade secrets. They are asking that the bloggers reveal their sources – thought to be Apple insiders. The EFF is arguing that web publishers are in fact journalists and that the First Amendment to the U.S. Constitution – as well as California law – protect the bloggers from having to disclose any sources.

Let’s review the amendment here, just for clarity:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Apple’s attorney George “please get a clue” Riley says that free speech only pertains to “legitimate” members of the press and not to web site publishers. Freedom of the press is for the press, meaning the traditional media only, claims Riley.

Now wait a minute! What is traditional media anyway? And how is a “legitimate” member of the press made legit? Historically, the First Amendment in part grew out of the trial of John Peter Zenger, a newspaper publisher sued for libel in New York in 1735. Zenger, a German immigrant, had no press credentials, and yet is essentially the father of the First Amendment as it applies to the press.

When the First Amendment was ratified – it might interest Riley – there was no telegraph, no radio, no television, no recording device, no satellite, no ditto machine, no copier, no electronic press, no photo reproduction or photography, no film, no AP newsire, no FOX or CNN or MSNBC. Not even a ballpoint pen.

So, what’s left other than what comes off an old printing press as the definition of “traditional” media?

Information gatherers working in any medium, including the web, are by that reasoning non-traditional. This puts bloggers in grave danger: The very institutions that we are reporting on have the power to stifle our First Amendment rights.

The suggestion that one needs to have some stamp of approval from a governing authority in order to have First Amendment protection, at least in this journalist-slash-blogger’s opinion, turns the First Amendment on its head. Doing so would require us to obtain permission for First Amendment protection when the First Amendment is already our right as citizens of the U.S.

Hat tip and help: Linus

Filed under:   general
Posted by:   Molly | 15:29 | Comments (17)

Comments (17)

  1. Pingback: » profit v. civil liberties

  2. Pingback: » profit v. civil liberties

  3. Well spoken, Molly!

  4. I couldn’t agree more. Right on Molly!

    I am appalled by Apple egregious efforts to squash what is by no other definition free speech. As a law student, I also think Apple is making a mistake, because what real damages has Apple suffered from these bloggers? I mean, come on! It’s not like Apple’s stock suddenly tumbled to oblivion; no, quite the contrary.

    In my opinion, it is efforts like this that fuel the momentum behind the open source movement. Apple should stop suing people and put that money to what it does best-building quality computers.

  5. I think you might be a bit off the mark. Isn’t the problem not one of free speech but, instead, one of revealing trade secrets? If the bloggers were cussing Apple, calling it all kinds of names, that would be fine and perfectly protected, as would any kind of commentary on the company. But revealing trade secrets is against the law. Neither professional journalists nor amateurs are allowed that liberty.

    I don’t see how a ruling that would confirm the protection of trade secrets could in any way damage the ability of bloggers to exercise their First Amendment rights.

  6. What would have happened if the blogs in question were not US based? Is this just a local issue? Or one to concern all bloggers?

  7. Paul M. took my comments. I do agree that they shouldn’t be giving away trade secrets. In this case, by doing so, they are in collusion with those who have most likely signed agreements not to do such a thing. The behavior of the blogger only encourages others to break their own contractual obligations, especially if some of them receive monetary kickbacks for their information. I’m not saying this blogger was doing it, but it’s not like it hasn’t happened before.

  8. Again, a reporter does not have the right to protect sources who have committed illegal acts. If I am a serial murderer and I contact a member of the press, the reporter has an obligation to the community to turn me in which is more important than the reporter’s need to protect a source.

    By the way, before people accuse me of blowing the case out of proportion, keep in mind that the EFF is trying to use the analogy of Watergate.

    Apple is not committing a crime by developing products. Those who report on the details of these products are committing a crime–breach of contract (namely, the Non-disclosure Agreement). Thus, the reporter who protects this person–“legitimate” or not–does not deserve protection.

    That said, saying bloggers are not “legitimate” members of the press is wrong. But I’d say the same thing if the information was reported in the New York Times.

  9. Good post and great comments.

    I actually tend to side with Apple in this specific case – I figure they have to bring up a lawsuit as this is their only recourse when trade secrets are illegally obtained.

    But when the case veers into territory about whether blogging is another form of media, with all the rights granted to other media… if you define the First Amendment as protecting an entities right to free PUBLIC speech, then yes, blogging should be accorded the same rights as Newsweek or People or The National Enquirer.

    But I want to know this – since when is a lawsuit brought up that is asking to have sources revealed somehow impinging on the rights to free speech? I know I know, sources won’t talk to the media without anonymity, but in this specific instance – where is Apple or the legal system saying that these sites couldn’t post what they did?

  10. I agree with Apple that their trade secrets should not be disclosed, but the burden of non-disclosure falls on Apple employees, *not* on limitting the reports of third parties. Apple has every right to search their email servers and track what parties may have been responsible for the leak, and terminate said parties. Apple furthermore has the right to sue anybody involved that signed a non-diclosure agreement.

    Ethically, the bloggers should not have posted legitimate “trade secrets,” nor should they have pursued the story to attain these secrets. Ethics, however, are not bound by the law in such cases.

    Apple also may have a legitimate claim for getting a court to stop the publishing of trade secrets (depending on what patent and/or copyright laws are involved).

    I hope that the leak is found, terminated and sued to make an example of what happens when people violate non-disclosure agreements, but the bloggers should not be forced to reveal their sources. Otherwise, future sources (of perhaps criminal activity), will not be able to report activities without fear of retribution.

  11. Tricky situation, and nicely debated so far. My initial reaction is, “What exactly are these bloggers being sued for?” Obviously Apple needed to take action, otherwise non-disclosures would no longer be respected by those that sign them, however, the bloggers themselves did not sign the non-dosclosure agreement, therefore, the only crime they have committed, it would seem, is obstruction of justice for not revealing their sources.

    It appears the first amendment issue and those trying to defend or oppose it are unclear on their tactics. What difference does it make if they are legitimate media members or not if a ‘reporter’ in the same situation would still be sued? Why debate whether the definition of media in the First Amendment applies protection to bloggers if hiding a criminal doesn’t allow protection for anyone – media or otherwise?

  12. This is not a 1st Amendment issue. It is a tort (aka civil) issue.

    We’re not talking about information concerning government that should be available to the people, we’re talking about commercial trade secrets which have been published, probably unlawfully. There’s a huge difference.

  13. A big danger on that! But blogging world is gatting bigger and bigger, we are millions now. Together we make the “force”

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