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Bloggers Likely to Win on Appeal

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The Court of Appeals in California appears ready to overturn an order forcing bloggers to turn over confidential sources. Apple had alleged that the bloggers had published trade secrets. Apple argued and the trial court agreed that the allegation was enough to vitiate the bloggers’ rights under the First Amendment, the California Reporter’s Shield Law and other statutes. The trial court ordered the information produced and the matter was stayed pending the appeal.

While many rightly pointed out that the decision turned on the trade secret question, not the fact that it was bloggers in the crossfire, bloggers were concerned. The nature of the parties may have swayed the trial court to look more closely at the trade secret argument. Trade secrets are not new and there has never been a previous exception made to the protection of confidential sources for trade secrets. In addition, there was no guarantee that the appellate court would treat bloggers as the equivalent of journalists. Two groups of bloggers, the Bear Flag League and the specially-formed Online Journalists and Organizations, filed amicus briefs.

Yesterday, the Court of Appeal issued an order indicating that it intended to overrule the lower court:

Respondent superior court is ordered to show cause before this court at a time and place to be specified by court order why a peremptory writ should not issue as requested in the petition for writ of mandate and/or prohibition. Real party in interest may file a return in opposition to the writ on or before 7-5-05. Real party in interest may choose to treat its preliminary opposition as the written return. If real party in interest does not do so and instead files a written return.petitioner may reply to the return within 20 days after it is filed in this court. Any PARTY desiring oral argument shall so inform this court in writing on or before 7-5-05 by completing and returning to this court the attached “Request for Oral Argument”

While oral argument may change the Court of Appeal’s final decision, it is unlikely. The reasoning will be disclosed in the written opinion.

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