Court Rules Bloggers are Journalists Under California Constitution and Statute

The court’s decision is based on an interpretation of the California State Constitution, art. I, § 2, subd (b) which provides that:

“A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . shall not be adjudged in contempt . . . for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” [Emphasis added]

It is also based on what the language of Evidence Code section 1070, subdivision (a) means, which is to substantially the same.

Reading this decision is fun (for this attorney), but is also accessible to the non attorney reader. It involves what Apple Computer contended was the wrongful publication on the World Wide Web of secret plans to release a device that would facilitate the creation of digital live sound recordings on their computers.

Among the fun parts of reading the Court’s decision is their explanation of the workings of the internet, for which they quoted from online sources, such as their footnote 3:

“As with many of the concepts in this opinion, the most authoritative and current sources of information may themselves be found on the web. Thus FireWire is described by a well-known cooperative encyclopedia as a type of serial bus interface used to connect external devices to a computer. (Wikipedia, The Free Encyclopedia (as of May 23, 2006).) A “breakout box” is a device “in which a compound electrical connector is separated or ‘broken out’ into its component connectors.” (Id. at (as of May 23, 2006).)

In footnote 5, the Court disposes of another issue, saying: “This theory appears to conflate two quite different early video games, one called “Breakout” and another called “Asteroids.”

There are many more pages devoted to the meaning of the internet and other technological advances.

Starting at page 35 of the decision, the Court starts getting into the comparisons of different media and journalism. Among them, the following:

Apple argues that petitioners may not avail themselves of the shield because (1) they were not engaged in legitimate journalistic activities when they acquired the offending information; and (2) they are not among the classes of persons protected by the statute.

In particular, Apple asserts, petitioners failed to establish that they acquired the information in question while “engag[ing] in legitimate journalistic purposes,” or “exercis[ing] judgmental discretion in such activities.”… According to Apple, petitioners were engaged not in “legitimate journalism or news,” but only in “trade secret misappropriation” and copyright violations. The trial court seemed to adopt this view, writing that “Mr. O’Grady took the information and turned around and put it on the PowerPage site with essentially no added value.”

We decline the implicit invitation to embroil ourselves in questions of what constitutes “legitimate journalis[m].” The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish “legitimate” from “illegitimate” news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

Nor does Apple supply any colorable ground for declaring petitioners’ activities not to be legitimate newsgathering and dissemination. Apple asserts that petitioners merely reprinted “verbatim copies” of Apple’s internal information while exercising “no editorial oversight at all.” But this characterization, if accepted, furnishes no basis for denying petitioners the protection of the statute. A reporter who uncovers newsworthy documents cannot rationally be denied the protection of the law because the publication for which he works chooses to publish facsimiles of the documents rather than editorial summaries. The shield exists not only to protect editors but equally if not more to protect newsgatherers. The primacy Apple would grant to editorial function cannot be justified by any rationale known to us.

Moreover, an absence of editorial judgment cannot be inferred merely from the fact that some source material is published verbatim. It may once have been unusual to reproduce source materials at length, but that fact appears attributable to the constraints of pre-digital publishing technology, which compelled an editor to decide how to use the limited space afforded by a particular publication. This required decisions not only about what information to include but about how to compress source materials to fit. In short, editors were forced to summarize, paraphrase, and rewrite because there was not room on their pages to do otherwise.

Digital communication and storage, especially when coupled with hypertext linking, make it possible to present readers with an unlimited amount of information in connection with a given subject, story, or report. The only real constraint now is time—the publisher’s and the reader’s. From the reader’s perspective, the ideal presentation probably consists of a top-level summary with the ability to “drill down” to source materials through hypertext links. The decision whether to take this approach, or to present original information at the top level of an article, is itself an occasion for editorial judgment. Courts ought not to cling too fiercely to traditional preconceptions, especially when they may operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editors’ own “spin” on a story. …

Apple contends that petitioners have failed to show that they are among “the types of persons enumerated in the [shield] law.” (Delaney, supra, 50 Cal.3d at p. 805, fn. 17.) The law extends to “[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . .” (Cal. Const., art. I, § 2, subd. (b).) In seeking to place petitioners outside this description, Apple does not address the actual language of the statute. It simply asserts that (1) the shield law has been “repeatedly amended to include new forms of media,” but “has never been enlarged to cover posting information on a website”; (2) “[p]ersons who post such information . . . are not members of any professional community governed by ethical and professional standards”; and (3) “if Petitioners’ arguments were accepted, anyone with a computer and Internet access could claim protection under the California Shield and conceal his own misconduct.”

These arguments all rest on the dismissive characterization of petitioners’ conduct as “posting information on a website.” We have already noted the pervasive misuse of the verb “post” by Apple and allied amici. … Here they compound the problem by conflating what occurred here—the open and deliberate publication on a news-oriented Web site of news gathered for that purpose by the site’s operators—with the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board system, or discussion group. Posting of the latter type, where it involves “confidential” or otherwise actionable information, may indeed constitute something other than the publication of news. But posting of the former type appears conceptually indistinguishable from publishing a newspaper, and we see no theoretical basis for treating it differently.

Beyond casting aspersions on the legitimacy of petitioners’ enterprise, Apple offers no cogent reason to conclude that they fall outside the shield law’s protection. Certainly it makes no attempt to ground an argument in the language of the law, which, we reiterate, extends to every “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication.” (Cal. Const., art. I, § 2, subd. (b).) We can think of no reason to doubt that the operator of a public Web site is a “publisher” for purposes of this language; the primary and core meaning of “to publish” is “[t]o make publicly or generally known; to declare or report openly or publicly; to announce; to tell or noise abroad; also, to propagate, disseminate (a creed or system).” (12 Oxford English Dict. (2d ed. 1989) pp. 784-785.)…

We come now to the difficult issue, which is whether the phrase “newspaper, magazine, or other periodical publication” (Cal. Const., art. I, § 2, subd. (b)) applies to Web sites such as petitioners’. Again, Apple offers little if any argument concerning the construction to be given this language, beyond the general notion that it should not extend to petitioners.

As potentially applicable here, the phrase, “newspaper, magazine, or other periodical publication” (Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070, subd. (a)) is ambiguous. The term “newspaper” presents little difficulty; it has always meant, and continues to mean, a regularly appearing publication printed on large format, inexpensive paper. The term “magazine” is more difficult. Petitioners describe their own sites as “magazines,” and Apple offers no reason to take issue with that characterization. The term “magazine” is now widely used in reference to Web sites or other digital publications of the type produced by petitioners. Thus a draft entry in the Oxford English Dictionary defines “e-zine” as “[a] magazine published in electronic form on a computer network, esp. the Internet. [] Although most strongly associated with special-interest fanzines only available online, e zine has been widely applied: to regularly updated general-interest web sites, to electronic counterparts of print titles (general and specialist), and to subscription-only e mail newsletters.” Similarly, an online dictionary of library science defines “electronic magazine” as “[a] digital version of a print magazine, or a magazine-like electronic publication with no print counterpart (example: Slate), made available via the Web, e-mail, or other means of Internet access.” And a legal encyclopedia notes that “[a]s with newspapers, the nature of magazines has changed because of the internet. Magazines may be published solely on the internet, or as electronic adjuncts of a print magazine.” (58 Am.Jur.2d (2002) Newspapers, Periodicals, and Press Associations, § 5, p. 11, fn. omitted.) …

However, even were we to decide—which we do not—that Web sites such as petitioners’ cannot properly be considered “magazines” for purposes of the shield law, we would still have to address the question whether they fall within the phrase “other periodical publications.” That phrase is obviously intended to extend the reach of the statute beyond the things enumerated (newspapers and magazines). The question is how to delineate the class of unspecified things thus included within the sweep of the law. …

Here it might be suggested that the shield law only applies to “periodical publications” in print, because that was a common feature of newspapers and magazines at the time the law was enacted. Yet there is no apparent link between the core purpose of the law, which is to shield the gathering of news for dissemination to the public, and the characteristic of appearing in traditional print, on traditional paper. Indeed, the shield law manifests a clear intention not to limit its reach to print publications by also protecting “person[s] connected with or employed by a radio or television station.” (Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070, subd. (b).) Apple alludes to the absence of any similar explicit extension to digital publications such as petitioners’, but this consideration is far from compelling. No one would say that the evening news on television, or an hourly news report on radio, is a “newspaper, magazine, or other periodical publication.” The broadcast media represent a radical departure from the preexisting paradigm for news sources. Because no one thought of those media as “publications,” an explicit extension was necessary to ensure their inclusion. Petitioners’ Web sites are not only “publications” under various sources we have noted but also bear far closer resemblance to traditional print media than do television and radio. They consist primary of text, sometimes accompanied by pictures, and perhaps occasionally by multimedia content. Radio consists entirely of sounds, and television consists almost entirely of sounds and pictures. While television could be used to deliver text, it almost never is.

It is “technically” debatable whether petitioners’ Web sites constitute “periodical publication[s]” within the contemplation of the statute. In its narrowest sense the term “publication” has tended to carry the connotation of printed matter. But petitioners’ Web sites are highly analogous to printed publications: they consist predominantly of text on “pages” which the reader “opens,” reads at his own pace, and “closes.” The chief distinction between these pages and those of traditional print media is that the reader generally gains access to their content not by taking physical possession of sheets of paper bearing ink, but by retrieving electromagnetic impulses that cause images to appear on an electronic display.

There is a lot more here to this decision. Its reach is huge. If it stands, it will be cited for years to come on issues involving the internet, undoubtedly in ways that we haven’t contemplated.

The times, they are a changing. The San Francisco Chronicle and the San Jose Mercury News are among the papers to report on this decision and its importance. The established press is changing too, and some are becoming bloggers.