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Apple vs. OnLine Journalists: Are Bloggers Journalists?

Nicholas Ciarelli, aka Nick DePlume, a Harvard freshman sued by Apple for disclosing trade secret information about its new Mac mini computer on his website, Think Secret, has filed a motion with the Court seeking to have the case dismissed under California'as Anti-SLAPP law.

SLAPP stands for Strategic Lawsuits Against Public Participation.

The law is designed to protect individuals who are exercising their free speech rights from frivolous lawsuits designed to silence them.

Ciarelli argues that he has the same right as journalists to protect his sources.

Ciarelli argues that he is no different from any other journalist. He solicits tips and offers sources confidentiality in the course of news gathering. But he did not pay Apple's employees to disclose proprietary information, nor did he sell the alleged trade secrets to a competitor of the computer-maker, according to the motion.

Apple has filed similar suits against subpoenaed information from two other websites. On March 3, the Judge ruled that bloggers are not journalists and that the websites have to divulge their sources.

Here's the $64 million question: Are bloggers journalists? It depends. Think Secret reports on news and has been cited in articles about Apple by the New York Times, BusinessWeek and the Mercury News. I'd say that makes the writer a journalist.

The civil rights group Electronic Frontier Foundation, which represents two of the three sites under fire, says being able to ensure sources' confidentiality is critical to any journalist's ability to acquire information -- and that includes Web diarists, aka bloggers... "They're people who gather news, and they do so with the intent to disseminate that news to the public. The only distinction to be made between these people and professional journalists at The New York Times is that they're online only."

....So is a blogger a journalist? Certainly, some organizations have begun to legitimize Web logs as a valid grassroots form of journalism. In 2004, bloggers for the first time received press passes to cover the conventions during the Presidential elections. They have broken major news stories. Several prominent bloggers have become media pundits. And mainstream media outfits, including BusinessWeek Online, are developing blogs to complement their traditional outlets.

By those definitions, writing TalkLeft makes me a journalist. I report on the news and create a daily newsfeed. I received a press pass to cover the Democratic convention and covered the Republican convention without a pass. I've been a cable news pundit for nine years. I'm paid to blog local politics and news for a mainstream media publication, Denver's 5280 Magazine. I've done several online chats for the Washington Post on legal cases in the news, and wrote a monthly column on legislation for years for a legal publication. But, I'm not a journalist. I'm a lawyer and commentator and activist who writes a blog. That may make me media, but it doesn't make me a journalist. It's one thing to blog about the media, news and politics. It's another to actually be a journalist.

Another note: Just as not all bloggers who blog about the news and media are journalists, not all journalists are reporters. Some are columnists and opinion writers. I see most bloggers as fitting into the latter category. In fact, what's the difference between a columnist and a blogger, except usually only the former gets paid for his or her opinions? Probably, the answer is accountability. A journalist has to be responsible and report or provide commentary based on accurate facts. That takes work. Bloggers sometimes write fast and don't have the resources or inclination to fact-check. True, their readers point out mistakes almost instantly, and bloggers then both correct the error and note it (which is more than some MSM publications do) but still, the blogosphere is in its Wild West stage and it's read at your own risk.

Lawyer bloggers have an edge, because we have Lexis-Nexis and can fact check pretty easily. But that's not a responsibility to assume lightly. I'd rather be a personal blogger and purveyor of my own constitutionally protected opinions. Here's why:

When a New York Times reporter get sued for libel, the Times hires Floyd Abrams to represent them. Who's going to pay a blogger's legal fees? Sure, there are pro bono organizations like Electronic Frontier who will come to the rescue of some. But, in general, bloggers are on their own, liability-wise. Dominick Dunne, a prominent author who's being sued by Gary Condit for what he wrote in a Vanity Fair article, will tell you it's no fun to defend a libel suit. So unless I happen to be your lawyer, please don't tell me any secrets. I'll take the attorney-client privilege over the reporter's shield any day. Even post-Ashcroft, at least it still has most of its teeth.

MSNBC's Connected Coast to Coast with Ron Reagan and Monica Crowley will be covering the Apple case at noon ET Wednesday, and I'll provide some commentary from both the blogging and legal perspective.

Update: It was a thoughtful discussion for two segments that raised several topics, and focused as much or more on whether the Apple site committed theft, and whether bloggers could publish stolen information, as it did on whether bloggers are journalists.

Trey of Jackson's Junction has the video of the second segment up here. Thanks, Trey. The other guests were Scott Mendelhoff (Fmr. Prosecutor and Paul Grabowicz (School of Journalism-UC Berkely.) As an aside, it's been years since I've seen Mr. Mendeloff. He was one of the prosecutors in the Timothy McVeigh trial in which I was one of the defense attorneys. We used to argue against each other in front of Judge Matsch. It was a lot more civilized this morning.

Update: The ever-gracious Crooks and Liars has posted the video of the longer, first segment.

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    TalkLeft: I'm surprised that you would fall for such a sloppy interpretation of the facts. First, Think Secret is not a blog, nor are any of the sites Apple is subpoenaing in a separate case. The sites have all been around for years before the "blog" craze, they don't call themselves "blogs," they're not structured as "blogs," and they're not acting as "blogs." Even the EFF has stopped using the term "bloggers" in its press releases, calling them "online writers" or "journalists" now. I still say that unless you call yourself a blogger, you're not one. Second, Apple has not "filed similar suits against two other Web sites." In a case that Apple filed first against a "John Doe" defendant, Apple has subpoenaed three Web sites seeking their sources on what Apple alleges are leaks of its trade secrets. The sites are not defendants in that suit, and it was those subpoenas that the judge provisionally let stand last week - none against "bloggers" of any kind. Third, while EFF like to keep saying that "Think Secret" and the New York Times are the same thing, it is patently not true. From the link:
    The Times doesnít print unsubstantiated or dubiously-sourced gossipy conjecture on unannounced or unreleased products. Thatís why theyíre The New York Times. Itís a non-sensical comparison.
    Fourth, Think Secret's motion to dismiss the case as a SLAPP suit is, to be honest, rather embarassing. One of its inventive arguments is that if someone, somewhere, anywhere, imagines that a company like Apple might make some product and publishes that speculation on the Internet, then the company has no further right to protect the existence of that product or its specifications as a trade secret. Read it for yourself before going on MSNBC, please. Some of the arguments are better than that; many are not. There really are First Amendment issues at stake here, but this "Apple is suing bloggers" crap was EFF's knee-jerk PR response to the lawsuit, and it's simply not factual - no "blogs" by any definition you know are involved, just professional media sites that have been around longer than Movable Type itself. I'll send you more information in E-mail so you can be better prepared for MSNBC tomorrow.

    Matt, thanks for your thoughts. Although I didn't say Think Secret is a blog, the San Jose Mercury News article I linked to screamed it in the headline, which I reprinted. I have changed it. And I do, in the post, equate bloggers with online publishers. I acknowledge your expertise in the area, but I do think your distinction between a blog that reports the news and an online news source is a distinction without a difference. The title to the Mercury news article linked to is "Blogger Seeks Dismissal of Trade Secret Lawsuit." One could make the argument that it is as much a blog, or as unlike a blog, as Drudge or Raw Story or any number of news sites that don't have a print version and a corporate MSM sponsor. Hundreds of blogs take ads, including TalkLeft, so that isn't a factor. As to the other websites being subpoenaed as opposed to sued, you are probably correct. The article says Apple "has gone to court" against two other websites. While the logical meaning is Apple sued, it could also mean Apple filed a motion trying to enforce a subpoena. You are obviously quite familiar with the case, So I'll stand corrected on that one. But you should complain to the online news source too. I look forward to receiving your additional information, although I won't get to read it until after the show.

    The essential question for those of us who are non-lawyers is this: If the New York Times were to receive confidential information about a new Apple product from two or more qualified anonymous sources and decided to publish the information in the form of a news story on its business page, would Apple be able to sucessfully litigate to force the Times to reveal its sources? In my days as a journalist I would have gone with the story if I was able to verify that my sources were credible and accurate. If the Times can safely do this wherein lies the distinction between the Times reporter and the young man who runs Think Secret? I think the discussion about who is and who is not a "journalist" is a debate ove the definition of archaic terminology. While I have a personal bias, in this case, that tends to support the kid running Think Secret, I'm wondering how one can resolve the dilemma and establish some standard for those who are authorized to convey information provided by anonymous sources and those who are not. Certainly, Apple and other companies would prefer a blanket ban - the only "facts" you can report are the "facts" as we explain them (Let's call it "The Bush Administration Standard") but I do not believe there is any case law that requires such an extreme interpretation. Again, I am no lawyer but am interested in being enlightened with further details about the various arguments this case creates.

    "Another note: Just as not all bloggers who blog about the news and media are journalists, not all journalists are reporters. Some are columnists and opinion writers. I see most bloggers as fitting into the latter category." Actually, assuming we're not really not talking about "most" bloggers but most "news/political" bloggers like TalkLeft or my Left I on the News, one of the key functions we perform is that of an EDITOR. Selecting which stories to reprint and give emphasis too is precisely what an editor does. Heck, aside from local reporting, most papers don't even have their own reporters anyway; they're picking up news feeds from AP, NY Times, Washington-Post, Reuters, and Knight-Ridder, just like we are. "A journalist has to be responsible and report or provide commentary based on accurate facts. That takes work. Bloggers sometimes write fast and don't have the resources or inclination to fact-check." I'm sure some do. But MOST blogs of interest, again like yours and mine, LINK to various sources of the information, and by "sources of information" I don't mean the Drudge report. I don't think I've reported a single false thing in two years of blogging, and I can't remember you doing so either.

    Incidentally, here's a very long opinion piece I wrote on the subject of bloggers as journalists a few days before the Apple story broke, in the context of considering whether or not a blogger would be eligible for a "journalistic license" to visit Cuba (unlike regular American citizens, who are denied the freedom to travel by our government).

    Eli:

    in the context of considering whether or not a blogger would be eligible for a "journalistic license" to visit Cuba (unlike regular American citizens, who are denied the freedom to travel by our government)

    I believe that eventually, whether or not in one of Apple's cases, this will be a sticky problem for courts. Laws like the "journalistic license" and "shield laws" inherently grant extra rights to reporters because they perform a public function. A shield law says that "regular citizens" subpoenaed to answer questions under oath, must answer, but "reporters" might not. If three minutes at a library computer and blogspot can make anyone into a "blogger" - and maybe a "journalist" - can these laws be justified at all? If they extend to everyone, what happens to thinks like confidentiality contracts. Breaking one by posting the info on a blog (or giving it to someone to post) would be unpunishable if no one could be subpoenaed to discover who did it. "Citizens" clearly have to answer such questions today, but if we're all "reporters," how does that change things? We're getting off the Apple topic, but I think the topic we want to think about probably has less to do with Apple than the hype anyway. :-)

    Re: Apple vs. OnLine Journalists: Are Bloggers Jou (none / 0) (#7)
    by kdog on Wed Mar 09, 2005 at 08:11:07 AM EST
    My non-legal perspective...Why is Apple suing the kid? It seems to me their beef should be with whoever leaked the info out of Apple. Common sense dictates something is no longer a "trade secret" once someone from within the company reveals it. Or am I missing something.

    KDOG: Fair questions - and I hope I'm not hitting my TalkLeft limit by answering: Nick Ciarelli only revealed himself as a "19-year-old college student" (now the canonical description) a couple of weeks after the lawsuit was filed. In the original papers, Apple said that it could not determine the identity of "Nick de Plume," and many technology industry analysts were shocked to learn that the site they'd been touting for rumors all these years had been run by a high-school kid. Or, more succinctly, Apple didn't know he was a kid when it sued "Think Secret." As for why Apple would sue the site, here's how I see Apple's view: For six years, the site's entire profitable purpose has been to obtain information that Apple has legitimately tried to protect as secret with non-disclosure agreements, guarding the documents, and other necessary steps. From the name "Think Secret" through huge-publicity scoops when it actually gets some inside information, the main point of "Think Secret" is to expose Apple's "secrets." If you're a company with trade secrets (or that believes you have trade secrets), and one media outlet continues to print them for its own profit year after year, perhaps from a variety of internal or external (but still under non-disclosure agreement) sources, what would you do to protect yourself? The pathology of people leaking Apple's confidential information is a book of its own, but if leaks from dozens of people all seem to wind up at the same place, wouldn't you consider taking some action against that place? (Since I am covering this here so much, I feel like I ought to plug MDJ, our newsletter for Macintosh professionals that has covered these cases and lots more about the Macintosh world in great detail. As of the time I post this, signing up for the free trial will send you an issue with lots of coverage of these cases - but don't sign up unless you're an in-depth Mac fan. If you're just interested in the legal stuff, MDJ will send you a ton of news about which you care not at all. [grin])

    Re: Apple vs. OnLine Journalists: Are Bloggers Jou (none / 0) (#9)
    by kdog on Wed Mar 09, 2005 at 08:57:37 AM EST
    what would you do to protect yourself?
    For starters, I'd be more careful who I tell my trade secrets too. It seems Apple has an issue w/ disgruntled employees, which has nothing to do with what some college kid puts up on the web. Apple should get their own house in order. Regarding the legal definition of journalists, I feel we should always err on the side of free speech, and allow a loose definition.

    Personally I'm brought to question the intelegence of Apple when it comes to this stragity of suing potental customers. That isn't very good buisness. With the cult following that Apple has amassed isn't it clear that these law suits would hurt Apple in the end? As for the question of Bloggers being journalists, it is an intresting argument. But one must consider when debating this that like the mass media, there are key differences between each station or blogger. For example one can see a blog like site: www.thebestpageintheuniverse.com isn't well supported by sources, but instead is an opinion site. Where as there are actual blogs that do support they information they have with sources, much like the news media.

    Matt, you don't have a limit on TalkLeft, you can comment as much as you like. I was able to read the material you e-mailed me before the show--twice in fact--and I did bring out some points raised in it. Thanks again for sending it.

    How would this case be different if Nick revealed these trade secrets as part of a lecture series across several college campuses? Why bloggers aren't journalists: Journalists presumably put a whole lot of effort into broadcasting their messages. If a party wished to counter what journalists were saying they would have to expend a like amount of effort (purchase presses, get on broadcast). Bloggers on the other hand don't expend any effort, making their actions as effortless as conversation.

    I thought a better $64 million dollar question is "does giving 'journalists' enhanced speech protection violate equal protection and deny everyone else equal participation in civic discussion". The idea of "journalists" as a legally privileged class of speakers enshrined in law is repugnant to the Constitution, to the very idea of equality. The right of the people to freedom of the press has been perverted in to the "right" of the institutional press to more free than the people.

    With the cult following that Apple has amassed isn't it clear that these law suits would hurt Apple in the end? It is not the nature of cult followings to be logical or consistent.

    The Times doesnít print unsubstantiated or dubiously-sourced gossipy conjecture on unannounced or unreleased products. Right. The Times hasn't printed anything from anonymous sources on Bush's unreleased Social Security "plan", for instance. Oh, wait, they have you say? Never mind then.

    The courts have consistently ruled that sources are NOT protected by the Constitution. This is not about bloggers being journos, that's just the FUD PR. This is about whether sources are protected, and the courts have ruled, not.

    Reporters for the New York Times do not have the right to protect their sources, why should bloggers be any different?

    Personally I'm brought to question the intelegence of Apple when it comes to this stragity of suing potental customers.

    That isn't very good buisness.

    I saw this spin soon after the subpoenas were issued and the lawsuit filed, and I still have real difficulty with it. Apple isn't suing "potential customers," unless you count Nick Ciarelli (the target of one lawsuit) and "John Does" 1-20 (the target of the earlier suit in which the rumor sites were subpoenaed). People who read the rumor sites were not subpoenaed or sued. In fact, only one rumor site has been sued, and as noted, Apple could not confirm who owned it before filing the suit. Most of Apple's "potential customers," by the way, are not running Web sites with about a dozen ads on each page (and we're not talking Google AdSense here, we're taking big, paid, flashy banner ads) based solely on their ability to convince people they know what products Apple is about to release. (The whole "cult-like behavior" thing, which also came up on MSNBC, is beyond the scope of this topic but just as easily debunked: Every time you hear "Apple's followers are cultists," think of the same lazy journalism that brought you "John Kerry is a flip-flopper.") And although these cases are not about "are bloggers really journalists," that question is going to come up sooner or later, and some of the same principles are at bar here. When these suits were first announced, the conventional wisdom was that they'd go away quietly and quickly with a settlement. We (MDJ) said at the time that was rather unlikely, and now you can see why. There's a lot at stake here.

    Re: Apple vs. OnLine Journalists: Are Bloggers Jou (none / 0) (#19)
    by cp on Wed Mar 09, 2005 at 08:17:53 PM EST
    matt, TL, et al, i have a question for you: what governing, licensing, official body decides who is and isn't a journalist? do "journalists" have to pass a rigorous licensing exam, like the bar or cpa exams? no, they don't. is it required that a minimum level of education be attained, to be a journalist? no, it isn't. must they be accredited by any state professional board, to "practice" as journalists? not that i've ever heard of. according to webster's, a journalist is defined as one who gathers information and reports it, regardless of the media. anyone can self-identify themselves as a journalist, much like anyone can proclaim themselves an actor or musician. just ask any waiter in ny or la. to be a "professional" journalist, one merely needs to be paid for one's work. again, that annoying webster! last time i checked, there is no law that requires you to be paid to simply be a journalist. there's no law that mandates a journalist be bound by any code of ethics, it's strictly voluntary. so, with all that, however did this judge decide that someone, anyone, is not a journalist? solely because he didn't work for a well known "news gathering organization"? seems like a pretty weak argument to me, all things considered.