Apple vs. the Bloggers: How It Unfolded and Where It Stands Now
Subject:   I hope Apple takes it up to the Supremes.
Date:   2006-06-15 10:48:37
From:   rkoman
Response to: I hope Apple takes it up to the Supremes.

To start with, I am reporting on what the court said. I am not second-guessing it just what it said and what it means. Please don't think that your disagreement with the court gives you a license for rudeness.

To address your points:

1. "The ruling does not establish that bloggers are journalists; it only established that the court abdicated it's responsibility in determining who is or is not a journalist, which they must do before the reporter's shield could be applied. This is the Mitchell Test, established by the California Supreme Court."

First, I did not say in the article or in my previous comment that bloggers are journalists; the article quoted Lauren Gelman's interpretation of the ruling: people who do journalism are do not lose the protections afforded to journalists merely because they are not attached to established media organizations, or because they don't publish in newspapers, magazines or radio/TV.

The ct of appeals essentially did make that determination and found that for purposes of the Shield *these* bloggers are journalists.

The Mitchell Test does not mention in any way a requirement to decide whether the journalists are in fact journalists. (37 Cal.3d 268 - you can find it on Mitchell establishes a balancing test between a "qualified" (not nonexistent, qualified) reporter's privilege under the First Amendment and a right of plaintiff in civil cases for disclosure. You can read either the Apple decision or the original Mitchell case to understand the prongs of that balancing test.

2. "There is no First Amendment protection for reporters, and there never has been; the U.S. Supreme Court affirmed this in a ruling last year. All citizens are guaranteed the right of free speech, nothing more."

If you want to provide a cite to this case, I will read it. The law in California is the Mitchell Test, which establishes, based on Supreme Court readings of the 1st Amendment, a qualified reporter's privilege. Granted, the First Amendment protection is weak, but it is not nonexistent. The First Amendment argument is not really core here, anyway, since Cal. has a Reporter's Shield.

3. "The California Reporter's Shield does not protect any reporter from disclosing their sources in a criminal case ..." This is not a criminal case; it is a civil case. The Shield does protect reporters from jail for failure to disclose sources in *civil* cases. Perhaps I should have made that more clear.

4. If Enderle is wrong, that only impacts an analysis of the impact on Silicon Valley, not the meaning of the decision.

5. The court detailed many additional options Apple could have pursued but did not. They are listed in the article.

6. There is no distinction between an argument between "are they journalists" and "are they protected." The only question is "are their activities protected under the Shield," which is equivalent to, are they journalists? Hair-splitting does not create an inaccuracy where none exists.

7. "Your argument that we wouldn't be having this discussion if it had been the New York Times is typical of the fallacies you and your ilk promote."

My argument was that there would be no question that work published on (although I should have said, since we're dealing with the California Shield here) would be protected under the Shield. THis is because LA Times is an established news organization. It was an open question whether work of these bloggers would be protected. This has now been decided, in the absence of an appeal to the Cal. Supreme Ct.

8. "Apple or any other tech company would sue anyone if they published trade secret information. It's a criminal act, so size has nothing to do with it. Apple has $9 billion in free cash, so they could easily outlast the NYT in any litigation."

Apple has every right to sue the people who violated their trade secrets, I agree. Trade secrets violations are both civil and criminal. This action was civil. To my knowledge, Apple has not asked the Dept. of Justice or the Cal. Attorney General to get involved, so there is no criminal aspect to this whatsoever. This is a civil action, and the damages for which the perpetrators would be liable, if they were to be identified and sued and found in error, would be civil damages ($).

As this is not a case on the scale of asbestos or DES, I seriously doubt NYT Co. would be unable to maintain litigation all the way through the process. If EFF did it, I'm sure NTY could.

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  1. I hope Apple takes it up to the Supremes.
    2006-06-15 14:55:24  DanaScully [View]

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