II. Allegations of illegality do not obviate the protections of the First
Amendment.
In ruling that the subpoenas to the non-party journalists’ Internet service
provider were not barred by the qualified First Amendment privilege, the Superior
Court placed significant emphasis on the plaintiff’s allegation that the disclosure and
publication of trade secrets is illegal under California law.7 The Superior Court’s emphasis is misplaced for two reasons. First, publication of illegally disclosed
information on a matter of public interest is protected under the First Amendment
where the journalist did not participate in the illegal acquisition of the information.
Second, an allegation of illegality does not permit the government or a civil litigant
to circumvent the protections of the journalist’s privilege to prevent disclosure of
confidential sources.
A. Publication of trade secrets by journalists who did not violate the
law in obtaining them is protected by the First Amendment. In order to perform its constitutionally protected function of informing the public on matters of public interest and importance, the news media often reports information that the government, corporations or others would prefer to remain secret…Even when corporate activity does not involve malfeasance, the actions of private companies, the products they produce and the services they provide can have a profound impact on people’s choices about their health, economy and lives. Just because a statute seeks to protect the secrecy of such information does not mean that the First Amendment protections provided to the news media to inform the public are wiped away. “Since those activities are protected by the First Amendment, state law may not impinge upon them by characterizing the activities as tortious. Stated differently, the constitutional protection accorded normal news-gathering activities does not depend upon the characterization of the cause of action seeking to impose sanctions upon its exercise.” Nicholson v. McClatchyNewspapers, 177 Cal.App.3d 509, 520 (Cal. Ct. App. 1986). The U.S. Supreme Court addressed this issue in Bartnicki v. Vopper, 532 U.S.
514 (2001).
…
Like the wiretapping statutes at issue in Bartnicki, the trade secret statutes that
form the basis of the plaintiff’s suit in this case prevent disclosure “by a person who
knows or has reason to know” that it was improperly acquired. Cal. Civ. Code §
3426.1 (b); See also Cal. Penal Code § 499c. As in Bartnicki, it is probable in this
case that the person who misappropriated trade secrets from the plaintiff and gave
them to the non-party journalists violated the law in doing so. But also as in Bartnicki, the non-party journalists’ subsequent publication of that illegally
intercepted information is protected by the First Amendment.
Under the first part of the Bartnicki test, it has not been alleged, let alone
proven, that the non-party journalists played a part in the illegal interception of the
information. Nor have the non-party journalists been civilly or criminally charged
with violation of the trade secret statutes. 532 U.S. at 525. Under the second part of
the test, the non-party journalists’ access to the information was obtained lawfully,
even though the information itself may have been intercepted unlawfully by someone
else. Id. Under the third part of the test, the information the non-party journalists
reported was on a matter of public concern.
If the information about the plaintiff’s yet-to-be-released product had been
disclosed by the plaintiff in a public forum, or inadvertently overheard, it certainly
would have been newsworthy. Id. Presumably, the plaintiff will issue press releases
when it announces the product in hopes that the news media will report on the
product. The issue in this case is not whether the information published by the nonparty journalists is newsworthy, the plaintiff is upset rather at when the newsworthy information was released. But the plaintiff’s preferred timing of the release is not one of the factors recognized by the Supreme Court in Bartnicki…It is for the news media to decide, not the plaintiff or the courts, when information becomes newsworthy.
The Superior Court erroneously relied on Bartnicki and the Supreme Court of
California’s decision in DVD Copy Control Association v. Bunner, 31 Cal.4th 864
(2003), for the proposition that the First Amendment does not protect journalists’ right to publish trade secrets. Order, 6:13-16 (Pet. Ex. 34, 460:13-16). These cases do not support such a broad proposition, and the differences between the two cases illustrate why the publication of the information in this case is protected. The Supreme Court in Bartnicki specifically did not decide the issue of whether the First Amendment would protect the disclosure of “trade secrets or domestic gossip or other information of purely private concern.” 532 U.S. at 533. California’s trade secret statutes are very broad in the definition of what they protect:
“Trade Secret” means information, including a formula, pattern, compilation, program, device, method, technique or process that:
(1) Derives independent economic value, actual or potential, from notbeing generally known to the public or to other persons who can obtain
economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
Cal. Civ. Code § 3426.1 (d); See also Cal. Penal Code § 499c (9).
Under an expansive reading of this definition, virtually any information that a company attempts to keep secret, and that could even potentially provide an economic value by remaining secret, is protected. Companies could prevent reporting on myriad matters of public interest and importance, including malfeasance, the development of harmful or unethical products or services, unfair business practices and anything else they would rather the public not know. Such a broad definition would essentially allow companies to control how they are covered in the news media, at the expense of the public. The Supreme Court’s failure to answer the question of whether a “trade secret”, which it did not attempt to define, would be protected under its test in Bartnicki cannot be taken as holding that the Court would permit a prohibition on speech so broad, particularly given the level of protection it found under the facts of Bartnicki.
The Superior Court cites Bartnicki for the proposition that “[r]eporters and
their sources do not have a licence to violate criminal laws such as Penal Code §
499c.” Order, 8:9-10 (Pet. Ex. 34, 462:9-10). What Bartnicki actually held on this
issue, in a footnote, is that:
Our holding, of course, does not apply to punishing parties for obtaining relevant information unlawfully. “It would be frivolous to assert – and no one does in this case – that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy
information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.” 532 U.S. at 532 n.19 (quoting Branzburg v. Hayes, 408 U.S. 665, 691 (1972)).
This language does not mean that California’s trade secret statutes are immune from
constitutional scrutiny. It simply stands for the proposition, not contested in this case, that the First Amendment does not permit journalists to trespass, break and enter, steal or violate other generally applicable criminal laws in order to gather information. The journalists in this case did none of these things.8
