Web Sites Covered by the California Journalist's Privilege:

So holds the California Court of Appeal in Apple's lawsuit based on a Web site's publication of leaked Apple trade secrets. (The site is O'Grady's PowerPage.) The court was interpreting the California Constitution's journalist's privilege provision, which protects (empasis added) "[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service[, or a radio or television news reporter or other person connected with or employed by a radio or television station], or any person who has been so connected or employed" from being held in contempt for failing to reveal the name of a source.

The court said, among other things, that:

  1. The California journalist's privilege isn't limited to printed media.

  2. The privilege applies to the publication of raw data — even with little explicit editorial commentary — and not just to the reporter's own words about that data.

  3. Though "periodical publication" might be read as requiring publication at fixed intervals (like the way most newspapers generally publish, but unlike the way blogs publish), in this context it simply refers to "all ongoing, recurring news publications while excluding non-recurring publications such as books, pamphlets, flyers, and monographs." (The court also noted that weblogs might also be considered "magazines," but concluded that it didn't have to resolve this because of its broad reading of "periodical publication."

  4. Bloggers are also covered by the journalist's privilege that California courts (and many other courts, though not all courts) have inferred from the First Amendment. This federal privilege, unlike the state privilege, can be trumped by a showing that the confidential information is necessary and not obtainable through other means (a showing that the court found wasn't adequately made here); in this respect, the federal privilege is narrower than the state privilege, but it's also broader in other respects (for instance, it provides more protection than just immunity from contempt sanctions), so the federal privilege remains relevant in California.

  5. The courts ought not limit the privilege to "legitimate" journalists, as opposed to mere bloggers (who, Apple argued, "are not members of any professional community governed by ethical and professional standards"). The court wrote, "We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis[m].' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."

It seems to me that the court got this absolutely right. Under the California journalist's privilege, all those who communicate to the public in a relatively regular way (as opposed to speaking only occasionally, or speaking only to a few friends) are protected, and are covered by the language "newspapers, magazines, or other periodical publications." Some state statutes are narrower, applying, for instance, only to "newspapers." But the California provision is written broadly, and should be read broadly, without any textually unjustified, hard-to-administer, or illogical distinctions.

Congratulations to O'Grady's legal team, including the Electronic Frontier Foundation and (representing amici) the Center for Internet & Society, for their success in this case. I was one of the amici (bloggers and others) on whose behalf the Center filed its brief.

Denise Howell (Bag and Baggage) has more.

Related Posts (on one page):

  1. Subpoenas to Service Providers for Contents of Stored E-Mail:
  2. Web Sites Covered by the California Journalist's Privilege: