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 14:55:24
From:   DanaScully
Response to: I hope Apple takes it up to the Supremes.

As I said, bloggers or whatever they want to call themselves, are not journalists. You've cited Lauren Gelman's "spin", which is nothing more than a parroting of the EFF spin on the ruling. Unless you're actually engaged in journalism and doing real reporting as opposed to publishing verbatim from another source, you're not a journalist. Publishing stolen trade secrets is not journalism.

Before the reporter's shield law could be invoked, the Mitchell Test must be applied, which the court did not do. They cited that case in their ruling, but only after they had already determined they were going to try to extend the reporter's shield to any blogger.

I can't recall the case citation, but I did read the ruling with interest when it came out. There simply is no First Amendment protection for reporters, no matter what the EFF would like everyone to believe. Regardless of the California Supreme Court decisions, U.S. Supreme Court rulings take precedence.

You're right, this isn't a criminal case--yet. And that should worry the plaintiffs a great deal, because there is no protection for reporters in a criminal case for not disclosing their sources. Should they be convicted, they will spend time in prison.

Rob Enderle should never be asked for a comment, or quoted; he's always wrong whenever the subject is Apple Computer.

The court detailed various options Apple could have taken to possibly find the source of the leak, but in the end, they assumed Apple did none of them, because Apple didn't give them any details on what they had or had not done. There's no evidence to support their conclusion, and unfortunately, nothing to disprove it.

There is a very real difference between "are they journalists" and "are they protected" under Mitchell. You could be a journalist and yet acting in a manner inconsistent with journalism, such as knowingly publishing stolen trade secrets. In that case, you would not be protected by the reporter's shield.

It wouldn't matter if it were the New York Times or the L.A. Times; Apple or any other tech company would sue them if they published trade secrets. Even their editors know better than to get involved in that. Many bloggers, including Jason O'Grady have tried to sell the argument that Apple wouldn't sue a big media organization.

They're wrong, because it's not a question of money; both NYT and LA Times have plenty of money and lawyers on retainer. Apple would sue them anyway.

Apple will appeal, all the way to the U.S. Supreme Court if they have to, and I'm confident this ruling will be reversed.