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San Jose, Calif., Court to Weigh Blogger's Rights

Posted on: Monday, 17 April 2006, 12:00 CDT

By Howard Mintz, San Jose Mercury News, Calif.

Apr. 17--At PowerPage.org, a Pennsylvania blogger offers up a daily menu of passionate online dish about all things Apple Computer. It looks like just another run-of-the-mill site in the vast and exploding blogosphere -- advertisements, links and an introduction that says "Publishing since 1995."

But bloggers like Jason O'Grady, who owns PowerPage, want to establish more than credibility with Apple aficionados. They see themselves as journalists, worthy of the same legal protections as Woodward and Bernstein, the New York Times or any other traditional form of media.

The blogging world may soon find out whether the highest courts in California agree.

In a possible test of what, exactly, is a journalist in a proliferating universe of bloggers and Web masters, a San Jose appeals court on Thursday will consider whether sites like PowerPage are entitled to the same protections against divulging confidential sources as established media organizations.

The 6th District Court of Appeal will hear arguments in a case triggered by Apple, which two years ago went to court to unearth the identities of individuals who leaked confidential information on a new product called "Asteroid" to three Web pages that specialize in Apple-related news. The closely watched legal spat appears headed for the California Supreme Court.

Cupertino-based Apple views the case as a direct assault on its right to protect trade secrets against theft and distribution. Among other things, the plans for "Asteroid," including an exact drawing of the device, were posted on PowerPage. Asteroid, which has not yet been released, is a digital music device designed to work with Apple's GarageBand music software.

But Apple's search for PowerPage's sources has provoked a First Amendment backlash. Civil liberties groups, media organizations, including the Mercury News, and a host of bloggers and online media have lined up against Apple, arguing that the company's position is an attack on a journalist's long-held right to protect confidential sources.

"The First Amendment wasn't designed to protect the organized press," said Kurt Opsahl, a lawyer with the Electronic Frontier Foundation who is representing O'Grady in the case. "It was to protect the right of the lonely pamphleteer who put a pamphlet up on the walls. A blogger is much more akin to those lonely pamphleteers."

George Riley, Apple's lead attorney, declined to comment. In court papers, however, Apple rejects the free speech arguments, saying: "There is no public interest in the theft and disclosure of trade secrets."

Apple is backed in the case by a coalition of high-tech companies who warn that there is no journalistic privilege when it comes to concealing corporate theft. In a supporting brief written by former Stanford Law School dean Kathleen Sullivan, the high-tech industry argues that bloggers are "exaggerating" the First Amendment stakes in the case.

"The First Amendment is not a shield for fences, nor a device for laundering to the public stolen property that happens to consist of speech," Sullivan wrote.

In March 2005, Santa Clara County Superior Court Judge James Kleinberg sided with Apple, although he did not directly address the scope of journalistic privilege for online information sources. Instead, the judge concluded that Apple had a right to find out who stole and leaked confidential product information.

"Let there be no doubt," the judge wrote. "The rumor and opinion mills may continue to run at full speed. What underlies this decision is the publishing of information that . . . fits squarely within the definition of trade secret."

In the appeal, PowerPage's lawyers are arguing that the scope of a journalist's privilege in California is near-absolute, unless there is no alternative way of discovering the information. They insist Apple has not exhausted other ways to figure out who among the 25 or so employees with access to the inside information could have released it to the Web sites. Apple argues that it has exhausted those possibilities.

O'Grady did not respond to an e-mail request for an interview. But in a declaration filed with the 6th District, he warned that allowing Apple to expose his sources would undermine PowerPage's ability to examine the company in the future. O'Grady said his Web page depends on the flow of confidential information for its authoritative glimpse into Apple.

Meanwhile, legal experts say the courts will have a hard time excluding bloggers from journalistic protections at a time when most media are blending into the online world. Eugene Volokh, a University of California-Los Angeles law school professor who operates a popular legal blog called the "Volokh Conspiracy," said it would make "no sense" for the courts to treat individual online publishers different than Slate or the Los Angeles Times.

"I think trying to distinguish between" different types of journalists has "always been difficult," Volokh said. "The advent of online publications makes it nearly impossible."

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To see more of the San Jose Mercury News, or to subscribe to the newspaper, go to http://www.mercurynews.com.

Copyright (c) 2006, San Jose Mercury News, Calif.

Distributed by Knight Ridder/Tribune Business News.

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Source: San Jose Mercury News

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