Last Friday, a California Superior Court judge ordered three bloggers to reveal confidential sources in a lawsuit brought by Apple Computer, ruling they weren't protected by the First Amendment, not because they weren't journalists-that issue the judge did not directly address-but because they published trade secrets.
Still, the case raised the hotly debated question of whether or not bloggers should be treated the same as journalists when protecting confidential sources. In a blog last week, I advocated extending to bloggers the same rights as journalists if they practiced journalism.
Unfortunately, because of a technical snafu, some of our readers' responses to the blog couldn't be posted. Here's what they wrote:
From Jim: "I agree that Apple Bloggers 3 should be treated as journalists. Where I disagree is that ipso facto all bloggers are journalists.
"There is more that goes into good journalism than just asking questions and throwing the answers out there … fact checking, editing, willingness to quickly and publicly correct any errors of omission or commission, the role of an ombudsman, etc. are all elements of real journalism. Are any of these mentioned in the Constitution? Of course not. But that is how good journalism has evolved in the last 2 1/2 centuries in this country.
"And in my admittedly non-statistically valid observation of Internet blogs, most are decidedly not practicing good journalism-little fact checking, no ombudsmen, and little effort to correct their errors or provide any semblance of balanced and fair reporting.
"Where to draw the line? I realize that trying to define good journalism and which bloggers deserve First Amendment protection and those which don't could well become the equivalent of trying to define pornography (as the judge said 'I'll know it when I see it'). This is a very gray area which we as a society will likely have to fix through a mix of overlapping and possibly conflicting case law, statutes which will almost certainly have unintended consequences, possibly some self-regulation by bloggers and leading academics, and just a better understanding of what blogging is-and isn't-in our 21st century, always-on, need-it-now, what-have-you-done-for-me-today society. All of these will take time to sort out, with the unfortunate reality that there will undoubtedly be victims along the way. I just hope the Apple Bloggers 3 are not among them."
From Ted, a documentary filmmaker, TV stringer, and blog columnist: "So who is considered a journalist? Only someone with a job with a 'credible' newspaper, radio or TV station?
"What about Internet radio reporting? Are those non-journalists vulnerable to source inspection?
"What defines print journalist? Distribution of the story in a printed paper? What defines a printed paper? Do college newspaper 'journalists' have protection? What about self-published papers, or established papers with little or no circulation?
"All a blogger would have to do would be print his article, place a price on the top, and set up a stand with a few dozen copies, and voila, he is published and for sale, and the blog is incidental to that legally, no?"
From Todd: "A person can act like a medical doctor, look like a doctor, and talk like a doctor, but that doesn't make him a doctor--a person you would put your trust in.
"Similarly, a blogger can act like a journalist, look like a journalist, and talk like a journalist, but that doesn't make him a journalist--a person that should be afforded the license of a journalist. If BusinessWeek has a blog, that gets different journalistic privileges than Joe Smow who is passing on gossip that borders on criminal activity. The issue is criminal activity, not the vehicle through which the activity takes place. It is a crime for me to knowingly possess stolen property, so is the dissemination of trade secrets."
From Vic: "As a former journalist, I see peril on both sides of this issue. Obviously some bloggers are practicing journalists with traditional credentials, including mainstream media credentials, professional training, press cards, etc., and they are the ones that currently have protections. The ad hoc bloggers can be anyone (e.g. Matt Drudge) and are actually under no managerial or professional restraints, a situation that courts irresponsibility and the circulation of spurious malicious content (e.g. recent political campaigns). The peril to journalists? How about licensing, a la other trades and crafts ... another horse for ambitious pols to ride on. Ugh."
From Dwayne: "For what it's worth, earlier this week a 'blogger' was on a Fox News segment. He was granted access to White House press conferences. The Fox News guy was asking him how he was being treated. I wish I had paid closer attention to who he was or his site."
From Ken: "Even traditional journalists are increasingly coming under fire. … And I think the trend must be stopped. However, the release of Apple's advance information had no moral or ethical value. Perhaps the test for journalistic immunity may have to hang on to some yet-to-be-set standard or whether or not the information released would serve the an overriding public interest.
"The federal government has taken steps to quash the use of cell phone cameras because the sins of the government most not be disclosed. Read as Abu Ghraib. In contrast, the disclosure of Apple's business plans could hurt only Apple and benefit their competition & speculators.
"A closer look at the employment contract Apple has in place should also be a factor before making a blanket decision about the merits of the current ruling.
"Doubtless, a change in legislation is needed to clarify the rules of engagement before indictments are issued."
From Frank: "I have to disagree. If you are a blogger, that's just a person who is a diarist or an essayist and does so in the public on the Web. Now, I haven't read anything from these sites that got sued. So, if these Web sites are doing investigative journalism, and fact checking and the like, then I would agree with you. But blogging, to me, is not journalism."
From Brian: "For you to compare defending America's independence with protection for revealing trade secrets is a serious error in judgment. You should not be an editor for anyone, anywhere and I will ignore any editorial by you in the future."
From Larry: "Blog protection?
"One should not be able to post 'unpublished information' on a Web site for personal gain while causing an undeterminable amount of harm to said company and then claim journalism protection. At a minimum, said company that has confided confidential information to their employees for the better of their business should be allowed to oust the employee and blacklist them from employment labeling them as the traitor/spy that they are."
From Rich: "Bloggers have no more rights than anyone else ranting in a public place. To elevate them to the status of 'journalist' makes no more sense than calling anyone who writes a paragraph of gibberish a published author."