Apple goes to the source

CNET News.com's Declan McCullagh examines the implications of a court battle pitting Apple against a handful of bloggers.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
Apple Computer's attempts to strong-arm Web publishers into divulging their confidential sources illustrates how bloggers, Internet journalists and other online scribes remain second-rate citizens.

No significant difference exists between the news-gathering techniques used by traditional reporters and the publishers of Apple news sites Think Secret, Apple Insider, and PowerPage. But there is a tremendous legal chasm dividing them: The California law protecting confidential sources shields only broadcast media and "periodical publications"--not the Web.

Apple claims that the Web writers are not "legitimate members of the press" when revealing details about forthcoming products. Those actions, though, describe exactly what good journalists do--writing articles that serve their readers, rather than the parochial interests of a single corporation.

The ability of Bob Woodward and Carl Bernstein to protect Deep Throat led to their famous series of Washington Post articles about the Watergate break-in and subsequently led to President Richard Nixon's downfall. At the time, Nixon's Committee for the Re-election of the President tried to compel Woodward and Bernstein to divulge their sources through a lawsuit.

Apple Computer is trying to win the argument that Richard Nixon lost.
Nixon failed. In a March 1973 decision, U.S. District Judge Charles Richey wrote: "This court cannot blind itself to the possible 'chilling effect' the enforcement of these broad subpoenas would have on the flow of information to the press, and so to the public."

Apple is trying to win the argument that Richard Nixon lost. It took its theories to a California state court on Friday and appears to have convinced a judge to require the three news sites to divulge their sources.

The eventual outcome of the case may turn on the wording of the California Constitution. It protects anyone currently or previously employed by "a newspaper, magazine, or other periodical publication, or by a press association or wire service." That shields sites like News.com, Salon.com, and Slate.com--typically staffed by ex-newspaper reporters--but probably doesn't help bloggers or the Apple news sites.

More than 30 states have shield laws, but none specifically protects online scribes. New York's statute is one of the broadest. But even that law is limited to someone "professionally affiliated for gain or livelihood with such medium of communication."

Exact wording matters. Last year, U.S. District Judge C. Lynwood Smith ruled that Alabama's shield law doesn't protect Sports Illustrated because the statute mentions only newspapers and broadcasters. Trying to squeeze a magazine into that definition, Smith wrote, "strains the commonly understood meanings of those words."

An offline advantage?
Vigdor Schreibman learned firsthand about the legal wall separating officially recognized journalists and online scribes.

Ten years ago, the publisher of the online Federal Information News Syndicate asked the Congress' press gallery to renew his press credentials. What Schreibman expected to be a routine renewal was denied by the gallery, without providing any reason, in January 1996.

"He was struggling against a press cartel that I felt was reluctant to admit journalists who was using new techniques," says Marc Rotenberg, Schreibman's lawyer. "This is an area where the traditional media needs to be more generous of spirit. The traditional media should shed its license-like privilege and throw their support behind the bloggers who are seeking the same First Amendment rights as anyone else."

Schreibman tried to overturn the decision by the press gallery, run by a committee of traditional news organizations. First he appealed to the speaker of the House. Then he filed a First Amendment lawsuit that went all the way to the U.S. Supreme Court without success.

Credentials are a bit easier to come by today, thanks to prominent examples like last year's political conventions. But it's still no slam dunk: The conservative news site WorldNetDaily.com had to threaten a First Amendment lawsuit for the press gallery to acquiesce by a 3-2 vote with dissents from representatives of Knight Ridder and the Columbus Dispatch. Oddly, Jeff Gannon enjoyed ="5593024">far more success.

Another area of legal favoritism lies in federal election law, which Federal Election Commission member Bradley Smith warned about in an interview. Newspaper and TV endorsements aren't counted as political campaign contributions because of a press exemption in federal law.

Because the exemption extends only to a "broadcasting station, newspaper, magazine or other periodical publication," Smith said that bloggers may be out of luck. "It becomes a really complex issue that would strike deep into the heart of the Internet and the bloggers who are writing out there today," he said.

Crafting a definition is hardly easy and runs the risk of de facto government licensing.
An emerging debate in Washington offers a chance to capture some of the same protections that traditional publications have long enjoyed.

Two recent bills would create a federal shield law primarily for offline journalists. One proposal, called the Free Speech Protection Act and sponsored by Sen. Christopher Dodd, D-Conn., extends to "electronic means of disseminating news or information to the public." The other, championed by Sen. Richard Lugar, R-Ind., is narrower and seems to be limited to traditional media.

Crafting a definition is hardly easy and runs the risk of de facto government licensing. A federal appellate judge warned last month that any attempt to draw clear lines between journalists and bloggers will be terribly difficult.

One law review article (available here in PDF format) by Linda Berger, a journalist-turned-law-professor, suggests a definition of whether someone is "engaged in the process of journalism."

That seems like a reasonable working definition that avoids the problem of authorizing the government to decide who is and who isn't a journalist. It may not be perfect, but it would be better than the second-class treatment that bloggers and Web publishers suffer from today.