In a decision sure to aggravate relations between the institutional press and bloggers, a California court has established the right of bloggers to protect their sources. The decision arises from a case in which Apple Computer sought to compel bloggers to identify individuals who leaked information about a new Apple product.
The court wrote that “[t]he 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.”
On the one hand that’s discouraging — Fox News is in the Big Tent once and for all — and on the other it’s good news: so is the Colbert Report, with its host’s penetrating interviews and commentary and stirring defense of Tom DeLay, and so is BTC News. We’re ready for our closeup now, Mr. Gonzales.
Apple is certain to appeal the decision to California’s Supreme Court. If it stands, one likely result is that leakers and whistleblowers who can’t find an audience among the institutional press are likely to broaden their horizons to include bloggers, something which holds perils as well as opportunities for the latter.
If there’s one genuinely distinguishing characteristic separating the “legitimate” press from the rest of us, it’s the financial and manpower resources available to them. Sometimes that doesn’t matter: if the New York Times wants to speculate on Hilary Clinton’s marital life, they’ll spend some tens of thousands of dollars and interview dozens of people. If bloggers want to speculate on the same issue, we’ll just read the Times or make stuff up — an option not foreclosed to the institutional press, of course — because we don’t have the time and money to equal the effort (or the psychological infirmities that would inspire us to try), and we’ll deliver much the same product.
What does matter is that the Times has the same sort of resources available, along with a cohort of attorneys, for its less gripping and lower stakes but equally time-consuming anonymously sourced stories on, for instance, NSA warrantless wiretapping. Bloggers can’t match that even though some of us would like to and will probably try. Maybe next year.
There’s an element of risk in distributing any information that someone with greater resources may wish to remain unseen. The Apple decision at once decreases the risk and increases the likelihood that bloggers will expose themselves to it. But the case also illustrates that the risk is broadly distributed even without the protection the court has, if the decision stands, enshrined: Apple wound up fighting not just the individual bloggers they went after, but the Electronic Freedom Foundation and supporters with a very deep collective pocket. There’s no such thing as a stealth free speech issue any more.
On a larger scale, bringing bloggers in under the shield laws, if that stands, provides the institutional press with an incentive to act on behalf of bloggers. From now on, any challenge to protections for bloggers amounts to a challenge to the same protections for the press, excluding Judy Miller. In the short term, the press will probably spend as much time trying to help the 3-judge panel develop that “workable test or principle that would distinguish `legitimate’ from `illegitimate’ news’ ” — the obvious litmus test being the number of people a blogger can talk to about Clinton’s sex life — as they will on absorbing the practical implications of the decision and the possible advantages of it for them. But they’ll come around eventually, which is something I wouldn’t have said a year or two ago.
