Within the last month, Apple sued 3 online journalists, also known as bloggers, to reveal their confidential sources that apparently provided information on upcoming Apple products. The Court in Santa Clara county approved a subpoena to the bloggers' ISP for emails. Other subpoenas to the bloggers themselves are apparently planned but have not been served.
When the Apple decision was issued, there was widespread reporting that online journalists would not get the same constitutional protections as the mainstream media. That interpretation was inaccurate. In fact, the Court ruled that disclosing trade secrets swept away constitutional protections.
The case now sits in the Sixth District Court of Appeal and there is a risk that the constitutional protections for blogging will be an issue. Today, the Bear Flag League, a collection of right-of-center blogs with ties to California filed its appellate brief as a friend of the court. Two other groups, one a trade association of ISPs, and one a group of bloggers, have previously filed friend of the court briefs. While all three urge the court to consider blogs equal to traditional journalism, when and only when the blogs are engaged in newsgathering activities, the Bear Flag League goes one step further.
BFL urges the appellate court to limit its ruling to the single subpoena at issue because the propriety of unserved subpoenas is not a "ripe" issue for consideration. A limited ruling assures future targets of such subpoenas that courts develop a full and fair record before addressing the issue. A limited ruling also allows the constituitional issues around blogs to be considered in a forum more focussed on the issue rather than in a forum tainted by the trade secret question.
Article comments
1 - Temple Stark
You should be proud.
But are you filing on something that the court MIGHT consider. I'm happy to notice, if I read this correctly:
In fact, the Court ruled that disclosing trade secrets swept away constitutional protections.
that that is the way I framed the issue before (here)
2 - Justene
It's hard to say what the appellate court will consider. While I have focussed on the trade secret issue, after reading the whole record, it seemed to me that trade secrets trumped shield laws on a pretty thin record. I think there are two things I was trying to get across:
1. There are a lot of people who care about this case so don't issue an appellate opinion that gives bloggers short shrift while you're focussed on trade secrets.
2. There is one subpoena to one ISP. Let's make sure the final decision is about one subpoena to one ISP.
3 - Eric Olsen
thanks Justene, very cool, you crusader