It appears that some Apple employees may have violated a secrecy agreement, and Apple has asked the blogger’s ISP to supply email records so they can track down and presumably prosecute, the employee(s) who leaked information. The AP and many others have rallied behind the blogger in an appeal of a recent ruling by a judge to release the information to Apple.
I understand the AP’s stake in this as setting a precedent, their points being that journalists shouldn’t be made to become informants for the government, and possible interference in the First Amendment people’s right to know.
What disturbs me is that the AP is basically getting behind any yutz with a computer and the ability to code who doesn’t even need to reveal his real name. I’ve been disappointed in what journalism has become, and the fact that the AP would stand behind bloggers gives keen insight into why journalism has become what it is.
The second link above compares sharing a company’s trade secrets to the importance of revealing what went on at Enron and Worldcom. I am also surprised that others in the technology industry haven’t rallied around Apple in the same way.
(If it even needs to be said, I’d rather this not become a platform discussion, please refrain from turning it into one.)
I do not know that there is any official distinction for Journalists in law. By that I mean it is not like being a priest where by virtue of your training and oaths you gain certain legal protections that no one else enjoys. Journalists are protected by the Constitution the same as anyone else and do not enjoy a “special” status that is only conferred by, say, having a Journalism degree and working for a recognized media company.
So, assuming I am correct in my assumptions, a blogger deserves the same legal protections as any other Journalist.
I think the AP standing behind bloggers is a good thing overall. I too do not like what Journalism has become to a large extent (owned by large corporations and tending to serve the corporation’s interests rather than an unprejudiced search for the truth). Bloggers at least seem to be a new way for the truth to get out. Certainly there can be any number of yo-yos pushing their own agenda so sorting the wheat from the chaff may be difficult but at least a new avenue for citizens to get to the truth is a good thing.
All of that said I am not aware of it ever being ok for a reporter (or anyone) to break the law in order to get a story out. If a blogger did something illegal then they should be given up to the courts. There are whistleblower laws on the books to protect those who try to bring to light something bad a corporation is doing and if this falls into that category the courts will sort it out. If the person was just being malicious then they’ll probably have their ass handed to them.
Not true. We have the right to keep sources confidential, although it’s not unlimited. Remember Vanessa Leggett? She claimed she didn’t have to reveal a source because she was a journalist working on a book, but since she had no book contract and was “virtually unpublished,” it was ruled she was not a journalist.
The Supreme Court disagrees. If everybody’s a journalist - and anybody can have a blog, so if anything it’s more relevant now - the idea that journalists have legal privileges to protect confidentiality goes away. You can’t have a journalistic privilege if everybody’s a journalist, and if journalists don’t have the ability to protect their sources it creates a chilling effect on those sources.
Perhaps a concrete, legal definition of ‘journalist’ is called for, though I’m sure any attempt to define it would create problems of its own. The Court put a lot of emphasis on publication and the intent to publish, which obviously is only a part of the whole reporting process. In fact it’s the end part. What Rosenberg says about asking questions with intent to publish and publishing material that someone considers news sounds like it’s about right, but it’s important not to be too vague.
This makes no sense to me. I’m not arguing you are wrong in describing the current state of law in this area…just that it makes no sense I can discern.
First, you are not a journalist unless someone is paying you to write (as the “no book contract” seems to imply)? Swell…let’s put writing for public disclosure firmly under the thumb of people with money.
Second, “virtually unpublished” means you have no protection as a Journalist? So, say you are on your first assignment for a paper you can get busted? How many articles/books do you need to get out before you enjoy some legal protection?
Third, how is it if “everybody is a journalist” privileges to confidentialty go away? Why can’t everyone have that privilege? If you write whatever it is you’ve found in a blog then you have published. If you don’t then you are like any other schmo in court being asked how you learned what you know.
I suppose one could envision a case where everyone would merely write down whatever and put it on some out of the way website and thus claim “protection” from what they wrote but it seems one could still show their intent. Journalists do not get blanket protections. They can be hit with libel, must show an effort at reporting the truth (or absence of malice?) and so on. I think one could also show that with a blog their intention was to publish for public consumption.
I certainly think all people should have the same protection as journalists. At least unless/until Journalists become a professional degree ala Lawyers and Doctors and have to pass a test, get regular re-testing and be subject to a professional licensing organization.
I don’t see how that’s different from being any yutz with a printing press and the ability to operate it.
Certainly, “Publius,” “The Federal Farmer,” “Cato,” “Brutus,” and “Cincinnatus” would have been… intrigued… by the notion that revealing your real name is a prerequisite for enjoying freedom of the press.
We’ve also had this discussion at work. The problem lies in: “Report on this or lose your job” vs. “report on this and we can make your life so difficult that you can lose your license.” Reporters themselves don’t get to say what the end product is; there are a string of editors and managing editors and various other corporate people guiding what gets printed. There’s where bloggers could serve a good purpose: unfiltered and unfettered from advertising and corporate restraints.
I am still closer to believing that just because you can publish something doesn’t mean you should. Does your typical blogger bring ethics into what he is putting up on his site, or is he thinking “this is my site, I’ll put up what I want” regardless of checking his sources for verity?
Well…if it is your site then write whatever you want. Certainly this makes for a big pile of bloggers of whom you have little way to know if they have an agenda or are really guided by ethics and a desire to write the truth (with the understanding that “truth” can be a slippery thing seen differently by different folks). You as the reader need to sort through it all. Still, bloggers may gain a reputation just as any paper does. Over time some blogs will float to the top as worthwhile and sort themselves into categories (liberal/conservative for instance).
Nevertheless if you publish your writings you do need to adhere to laws already on the books. Libel can get you for instance. Admittedly that allows a very wide latitude anyway as a screed from the likes of the KKK might indicate. It is my impression the United States, as a nation, has always taken the stance of avoiding censorship pretty seriously. Yes, parents get books removed from libraries sometimes and stabs at censorship are common but so far, by and large, you can still pretty much write what you like within some loose bounds. It just worries me that this indicates that some in our society are more protected than others from publishing what they like.
I get the sense that they did not define what a journalist is so much as they explained why Leggett wasn’t one, and we’re left to go from there. The reasons they gave, in her case, are not so awful.
If you were working for a newspaper - which she wasn’t, she was doing this on her own - there’s clearly intent to publish and I don’t see why there would be a problem. While she had a book idea she did not have a contract for it. She was not given protection because it was a murder case, it was possible she knew things nobody else did, and there was no way to know that her potential book would ever see the light of day.
Because then it isn’t a privilege. And it’s not one that everybody needs to do their job. If everybody can claim “I’m a journalist, so you can’t make me reveal my source for this statement that I made,” it would probably be eliminated because it would make prosecuting any case difficult.
This issue came up for quite a bit of online discussion when the journalists who received the “outing” of Valerie Palme were suppoenaed. The Volokh Conspiracy, a blog written by a number of law professors, covered the issue extensively, as did many other sites.
The following is based on my readings of this discussion, and is not authortative.
As I understand it, there is no journalistic privilege to keep sources confidential at the federal level. Journalists who are witnesses to crimes (in this case, the crime of leaking classified information) are no less obligated to testify about what they witnessed than any other citizen.
Various states have enacted shield laws which offer some degree of protection to journalists, but these protections are not absolute. Generally, the state needs to show that the information that the journalist can provide is vital to the state’s case, and cannot be obtained in any other way.
Some federal judges have followed a similar policy in issuing supoenas to journalists, but this is not required by the Supreme Court or by precedent.
In large part, the Court’s reasoning has been that there is no reasonable test to separate a person recognized as a journalist from a person not so recognized.
With the lowering of the technological barrier to publication, the distinction is increasingly hard to make. Is Glenn Harlan Reynolds (Instapundit) less of a journalist than, say, David Broder? Many bloggers write columns for printed-on-paper publications. Are their blog posts less protected under the First Amendment than their paper columns? This seems implausible. Is the blog post of a blogger who does not write a column less protected than a blogger who does? This seems implausible as well.
So, New York Times journalist does exactly the same thing Leggett does and he/she is protected? That seems wrong somehow. Journalists are not specially licensed nor even necessarily specially trained (as a doctor must be although of course one could be specifically trained in journalism). What makes them special deserving of special protection? That they are paid to write by a notable periodical?
No, not everyone needs the special privilege to not reveal sources to do their job. But, if their goal is to write something for public consumption then the right to withhold sources is every bit as important to them as it is to a paid journalist. It would be one thing if Leggett were just some average person who came by knowledge of a murder. It is another if Leggett does the leg work to track down the story and part of getting that story is promising confidentiality to sources. To say that ONLY people currently employed by the media or a person with a contract to write said book are the only ones deserving of claiming that privilege is wrong on many levels. A free press is considered vital to the health of a democracy. Our “free” press has shown itself of late to have agendas of their own making what they tell is at least worthy of some suspicion. It is in society’s interest to allow a true “free” press to exist. In the past that might have been a small printing press and nailing something to a tree in the town square. Today it is blogs. Different technology…same idea and importance.
Yutzes with printing presses are often no better, however printed publications do have regulations to follow. What regulations does a weblog have? Aside from the rules set by their ISP, none.
The example given here of the Apple case does not involve something as important as drafting the Constitution which would affect an entire country. “Publius,” “The Federal Farmer,” “Cato,” “Brutus,” and “Cincinnatus” all were taking risks by publishing their views, so it makes sense that they would have a pen name. This blogger is not facing retaliation, he just wanted a scoop, and is protecting his sources in the event that he may gain another.
Well, in some circles round the Dope, cites from blogs aren’t valid, apparently.
Anyway, in 1911, Winston Churchill said, ‘Although it may be very difficult to define in law what is or what is not a trade union, most people of common sense know a a trade union when they see one. It is like trying to define a rhinoceros: it is difficult enough, but if one is seen, everybody can recognize it.’
No. There are limits to this privilege, like I said and like Brother Cadfael said. I’m sure they would not extend to this case. Vanessa Leggett was just not able to use that as a defense against submitting her notes because it was ruled she wasn’t a journalist in the first place.
As I said, it’s that the free press would definitely be harmed. Let’s not put too much emphasis on ‘notable periodical.’ Any reporter for the Nome Salmon-Tribune in Alaska is allowed to claim the same occupational privilege.
Now here we have an interesting point. I wonder if a blog, which does not have the same kind of accountability a newspaper or magazine does, really has or needs the same kind of protection. This is probably another area where the law has not yet been extended to the 'net.
I think it’s been proven blogs do have a place in the flow of information today, and I think it’s intriguing that the AP is standing with them. Still, I do think you need to have a definition of what a journalist is (or isn’t), and if it’s too vague it’s not useful.
Recent events have shown that major newspapers and broadcast networks aren’t quite as scrupulous about their work as they’d like us to think.
But in any case, the First Amendment doesn’t say that it protects the “accountable” press or the “responsible” press. The fact that bloggers don’t own a printing press isn’t relevant either - neither does a TV station.
I think we need to clairfy between which rights and protections are given to (a) all citizens, and which rights and protections are given to (b) Folks Specifically Identified As Journalists™.
Only then can we debate whether or not bloggers should be considered journalists, and given the rights and protections afforded to (b).
Yes, but comparing broadcast media to bloggers isn’t entirely accurate. Traditional broadcasters, like TV and terrestrial radio stations, do have physical facilities and are answerable to the Federal Communications Commission for at least some of their operations, including some of their content.
First off bloggers have physical facilities too…just not on the scale of a broadcaster.
Second, the FCC does not regulate the content of a news broadcast beyond setting limits as to naughty words or nudity or graphic violence.
Third, the FCC only gets into broadcasters when they actually broadcast (i.e. over the air). A cable and/or satellite only station and the FCC has little to say about anything they do. Over the air broadcasts are deemed a special case because all citizens own the airways so society gets to place limits on what is transmitted (satellite comes through the air but is scrambled). Satellite and cable television require an act from the receiver to obtain it and they pay for it. If they do not like what is there they do not have to bother and it won’t bother them. The same can be said of the internet and blogs.
You don’t need recent events for that. Look at a really old newspaper some time. We had to invent the idea of objective reporting before FOX could kill it. Anyway I don’t think this really has to do with the issue at hand.
For all their failings, newspapers and TV stations are more accountable than bloggers legally, not just for inaccurate reports but for libel and so on. The comparison of blogs to a man nailing a piece of paper to a tree may be apt, but now people around the world can read what’s on the tree.
I’m not talking about the First Amendment. If this is just a First Amendment thing, I don’t think the people in question have a prayer of getting beyond the agreement they signed with Apple, which they probably broke. The question is “can they avoid prosecution on the grounds that they are journalists spreading newsworthy information?”
I’m not attempting to take the position that bloggers aren’t journalists. What I wanted to say is that in my opinion this issue is thornier than some people may think. I have a LiveJournal account. It’s read by about two dozen people. But I do frequently comment on the news in it. I’m definitely sharing information with people. Leaving aside that I’m already a journalist, at what point do my postings become a legally protected work of journalism? The idea that I’d have to do some legwork and investigating is intriguing, but of course non-reported commentary has been a staple of the news for a long time. What about us? Are we all journalists for posting on The Straight Dope? We investigate things, provide cites, share information. Metaphorically I like the idea, but legally I’m not sure.
What Rosenberg says about asking questions with intent to publish and publishing material that someone considers news sounds like it’s about right, but it’s important not to be too vague.