Santa Clara County Superior Court Judge James Kleinberg has issued a tentative ruling in favor of Apple Computer, which is trying to force three bloggers to reveal the names of confidential sources who leaked trade secrets related to an unreleased Apple product code-named “Asteroid” or “Q97.”

One of the main issues in this dispute is whether the bloggers are “journalists” who enjoy the same protections as their MSM counterparts under California’s Shield Law and the First Amendment to the U.S. Constitution.

California first enacted its Shield Law in 1935. In 1980, voters passed a referendum, Proposition 5, incorporating the Shield into California’s constitiution. The law was strengthened in 2001 after several courts held journalists in contempt for refusing to disclose information.

The Shield Law protects journalists from being held in contempt of court for refusing to disclose the source of any information that was gathered for news purposes. It applies to any “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.”

The Shield “also likely applies to stringers, freelancers, and perhaps authors,” according to The First Amendment Project. In one California case, People v. Von Villas, 10 Cal. App. 4th 201, 231-32 (1992), protections were extended to a freelance writer who had not yet signed a contract to publish his work.

The First Amendment of the U.S. Constitution also confers protections to journalists seeking to shield their sources, but as The Reporters Committee for Freedom of the Press observes, these protections are restricted to “legitimate members of the press.” They do not extend to “any person with a manuscript, a web page or a film….”

Apple’s lawyers argue that Jason O’Grady of PowerPage “does not perform an investigative reporting function in the manner of a legitimate news outlet” and thus is not entitled to journalistic privileges under either the Shield law or the First Amendment (see, e.g., page 11 of Apple’s Opposition to Motion For Protective Order).

As in the FEC case, the effort to draw a bright line between blogs and traditional media outlets has some rather bizarre implications. For example, do I enjoy the privileges of a “journalist” when I am gathering information for my syndicated column but not when I am gathering information for my blog? Do bloggers at Slate, Salon, and MSNBC enjoy protections not afforded to Matt Drudge?

Judge Kleinberg promised a written decision soon. Keep an eye out for it.

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Want more information?

- The three blogs Apple subpoenaed are Apple Insider, Think Secret, and PowerPage.

- The Electronic Freedom Foundation and the law firms of Tomlinson Zisko and Richard Wiebe are defending three of the people targeted by Apple: Jason O’Grady of PowerPage; Monish Bhatia, who provides hosting services to Apple Insider; and Kasper Jade, who publishes Apple Insider under a pseudonym. They’ve put the key court documents up on their web site here. Apple’s position is summarized here; EFF’s arguments are summarized here. (Both are .pdf files.)

- Think Secret is being represented by Terry Gross of Gross & Belsky LLP. Court documents are available for download here.

(Update, 3/6: Nick DePlume of Think Secret explains that Apple’s lawsuit against Think Secret is a separate action from its “John Doe” suit: “In the Doe suit Apple did not sue any journalists, but instead sought information through subpoenas to three Mac news Web sites, including Think Secret, concerning a product called ‘Asteroid.’ Think Secret has done no original reporting on Asteroid. In contrast, Apple’s lawsuit against the dePlume Organization seeks damages from Think Secret, a news organization.”)

- Jupiter Research senior analyst Joe Wilcox points out that Judge Kleinberg’s preliminary ruling does not provide any clarification as to who is a real journalist. “It’s custom for a news outlet to credit one of its peers for breaking a story. I can think of several print publications — all arguably legitimate press — that credited ThinkSecret for breaking news on iPod mini,” Wilcox said. “I would think that other legitimate members of the press regarding at least one these sites as legitimate press to be enough validation.”

- The Santa Cruz Sentinel says Congress should pass a federal version of California’s shield law. It says that legislation is now pending in both the House and the Senate: “Rep. Mike Pence, R-Ind., and Rep. Rick Boucher, D-Va., are co-sponsors of a measure that would force courts to have to meet strict standards before they could issue subpoenas to reporters. The bill would also provide a shield law. Sen. Christopher Dodd, D-Conn., introduced similar legislation in the Senate last year. His office told The Washington Post that he plans to introduce a similar bill during the new session.”

- Commentary at Boing Boing, Shape of Days, Gizmodo, Roger L. Simon, Cheese and Crackers, No Easy Answers, and Axinar’s.

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