Bloggers not protected by Constitution

A quick search of newsmap popped up a disturbing story about an Apple suit against three blogs that revealed company secrets. The crux of the issue is whether blogs are "real press media" and whether they therefore deserve the same protection as print, radio, and television when reporting news and information.

A tentative ruling yesterday by Superior Court judge James Kleinberg is likely to have serious implications for the online publishing industry. In a preliminary ruling on a case filed by Apple Computer against three website publishers, the judge said Apple can force the three website publishers to surrender the names of their sources who disclosed confidential information about the company’s upcoming products.

. . .

By his preliminary ruling, judge Kleinberg had refused to extend to the Web sites the same protection that shields journalists from revealing their unidentified sources or surrendering unpublished material.

The Electronic Frontier Foundation argued their position that the web publishers are journalists and their sources are entitled to protection by the California Shield Law and the First Amendment of the U.S. Constitution. Both protect journalists from being forced to disclose their sources.

Apple’s attorney Riley countered by saying that free speech protection applied only to legitimate members of the press and not to website publishers. Freedom of the press was for the press, meaning the traditional media, he said.

The ruling for the case is expected next week and would determine whether those publishers will have to comply with the subpoena to turn over e-mail records and other documents relating to the leak.

I have a problem with the distinction between the need for protection by the first amendment for the press and the question of whether the press is participating in a criminal act. Cf. Robert Novak. I would think that the first amendment was not designed to shield criminal activity, whether it's part of industrial espionage or political machinations leading to a breach of federal law regarding revealing the names of spies. If the law is not clear on this, we are surely in trouble. Being a member of the "press" is not a license for criminal activity.

On the other hand, the whole argument about "real press" is a load of excrement. When the Constitution was written, there weren't any televisions. No radios. Few regular newspapers. There certainly wasn't an internet for Hamilton, Madison, or Jay to use to publish their ideas regarding the Constitution. But these media are merely vehicles, tools for an activity, not the activity itself.

When the intent of the activity is to provide news of events and persons, to analyze current events and ideas, there should be no doubt that it is the action of a "real press." Blogs fall into this category of "real press" when they break news, analyze events and ideas, push items of interest and concern to their respective communities, however small or dispersed.

The matter of Jim Gannon/James Guckert doesn't really muddy this distinction. Here is a fellow who wrote for an online news service, received press credentials for the White House, and actively labelled himself a journalist. He was (is), however, a political hack. How he got into the White House press briefings remains an important question. Whether his efforts were coordinated closely or even at some remove from White House officials is a legitimate question. That doesn't take away from the role that he was filling--however poorly--of an internet-based reporter.

Gannon/Guckert got notice and then trouble because of his blatant partisanship. The underlying implications behind this trouble included an assumption that he was acting as a member of the legitimate press, albeit internet-based, and failed to live up to the standards of good journalism. He didn't write original stories; instead he paraphrased official press releases. He used his access to the White House to propagandize a particular point of view. He played the role of journalist without fulfilling the responsibilities of a journalist.

The same, sadly, can be said of far too many journalists in the "real press." But the medium that they use to present their reports is not the same as the reports that they are presenting.

There is a distinction between the news that one gets in the print press and in the television press. Television looks for visuals. The stories are usually brief and presented as if there were some drama involved. The print press looks at stories in more detail, has more space and time for examination of the underlying problem. The internet-based press, including blogs, often reviews stories presented in other media and expands on them or places them in a more well-defined context. Sometimes the internet-based press reports new details of current stories or even breaks entirely new stories.

By the same token, the internet-based press comes under fire for its adherence--or lack thereof--to current journalistic standards. It is entirely legitimate to expect of the blogs that one reads that the writer(s) make their biases clear and state any conflicts of interest that they may have on an issue. It is entirely legitimate to expect that any facts reported be substantiated with sources.

Why am I so het up about this? I have waffled around with Canal Water Review. Sometimes I have posted personal stories, especially about things and people that have affected me deeply. More often, I have posted my responses and analyses of issues that have been reported elsewhere, sometimes in obscure sources. I haven't decided the degree to which this blog is more political than personal, although it seems to be trending that way these days.

But I have another blog. It's professional. It focuses on a particular issue--and breaks news. It is intended for a particular audience and directed toward getting news about the issue to that audience. Sometimes I get information from sources that would not want to be revealed. I got a memo the other day which had been sent to a committee. I am not a member of that committee. The person who sent it to me is not a member of that committee. Yet, the information should have been public information. It just happens that the person who wrote it is a state employee and cannot circulate such information on his/her own account beyond the bounds of the committee. Luckily, I got it third hand (I got the original, but it came through several hands). I cannot really see anyone every questioning my having that memo or demanding my source, but, in the crazy event that should that happen, you damn betcha, I'm going to claim that that blog is "real press" and that the first amendment applies.