Dan Gillmor, a well-known technology writer who used to be a columnist at the San Jose Mercury News, weighs in on Apple Computer’s attempt to force three bloggers to reveal confidential sources:

A judge in California has decided that the sites don’t qualify as “journalism” (AP) under state law and/or the First Amendment. By his bizarre and dangerous standard, I apparently stopped being a journalist the day I left my newspaper job after a quarter-century of writing for newspapers.

(At the request of lawyers defending the bloggers, Gillmor filed declarations in the case, saying that in his opinion the blogs are performing a journalistic function.)

Gillmor also calls attention to The Free Flow of Information Act (H.R. 581), a bill pending in the U.S. House that is apparently modeled after California’s Shield Law. But as Gillmor notes, H.R. 581 “sharply circumscribes the definition of who’s a journalist — and appears to explicitly exclude bloggers and other non-traditional online journalists.”

The legislation would only protect:

A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that–

(i) publishes a newspaper, book, magazine, or other periodical;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity; or

(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

Therefore, Gillmor says, “bloggers need not apply unless they work for a major publication or broadcast. See a pattern?”

Yep.

More commentary:

- For my summary of some of the key legal arguments in the Apple case, see yesterday’’s post, “Apple vs. Blogs.”

- Snarkmarket says the FEC and Apple stories are “disturbing in every way.”

- Martin Stabe quotes Eugene Volokh, who wrote in a New York Times op-ed that “The First Amendment can’t give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.”

- Even some MSM reporters are alarmed. Dwight Silverman, who blogs for the Houston Chronicle’s Techblog, says, “the last thing anyone in either the professional press or the blogosphere wants is the government decreeing who’s a journalist and who isn’t.”

- Ed Morrissey calls the Apple case “The Second Front In The War On Bloggers.” He points out:

What has happened here isn’t a high crime or a misdemeanor, and it’s unlikely to be considered industrial espionage since the information immediately went public. It didn’t contain trade secrets, such as programming code; the information released would be the same used for a product launch. Apple just didn’t want it released at the time. That is a civil issue regarding non-disclosure agreements between itself and its employees, which hardly creates a situation that rises to the level of a compelling interest on behalf of the state that allows it to infringe on anyone’s speech, let alone established online publication. Besides, as the AP notes, Apple hasn’t yet launched a decent internal investigation; it hasn’t even attempted to depose its own employees with access to the information to determine who squealed.

- If Jeff Gannon and bloggers aren’t journalists, why is Giuliana Sgrena? As Lead and Gold points out, “[s]he works for [a] nakedly partisan newspaper–Il Manifesto–the voice of the Italian communists.”

Update: A couple of people have argued that the bloggers in this case don’t deserve the protection of California’s Shield Law because they were disseminating confidential information and/or because they weren’t pursuing an “important” news story (see, e.g., here).

But Apple’s lawyers take a somewhat different tack. They argue that even if the Shield Law applies in this case, the bloggers are not entitled to its protections because “the Shield can only be invoked by certain enumerated newspersons:”

[Jason] O’Grady [of PowerPage] does not fall within the enumerated categories set forth in the law. Although the law has been repeatedly amended to include new forms of media, it has never been enlarged to cover posting information at a website. Persons who post such information, moreover, are not members of any professional community defined by standards and common practices. Indeed, anyone with a computer and Internet access could claim the Shield if O’Grady’s arguments were accepted. The language of the statute, however, forceloses such claims….

Obviously, Apple’s lawyers would not be making this particular argument if O’Grady were a reporter at the San Francisco Chronicle or Los Angeles Times.

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