In March, California’s Santa Clara County Superior Court Judge James P. Kleinberg gave Apple Computer the green light to obtain electronic records from Nfox, which provides email service to PowerPage, a Web site that published confidential company information about an unreleased Apple product.
PowerPage, which claimed protection under a California law that protects journalists from having to divulge confidential sources, got little sympathy from Judge Kleinberg, who wrote in his ruling that company employees who leak trade secrets are distinct from “the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, (the enthusiast sites) are doing nothing more than feeding the public’s insatiable desire for information.”
Few thought that would be the end of the story, and the last week has seen a flurry of activity as journalists, bloggers, newspaper owners and proprietors of Web sites have filed a series of amicus briefs with the California’s Sixth Appellate District Court of Appeals in order to bolster the defendant’s right to be considered a journalist and claim the protections this confers.
The first brief, filed on April 7, includes some heavy hitters from the print media: the Associated Press, Los Angeles Times Communications, San Jose Mercury News, Hearst Corp., Freedom Communications, McClatchy Co., and Copley Press.
Several journalists’ and publishers’ organizations also signed on, including the Reporters Committee for Freedom of the Press, Society for Professional Journalists, the California First Amendment Coalition, California Newspaper Publishers Association, and Student Press Law Center.
The brief claims, in part:
Punishing journalists who did not illegally obtain access to trade secrets for publishing information on a matter of public interest would impair the news media’s ability to report on the activities of corporations and other businesses. The result will be a restriction in the flow of information to the public, inhibiting the public’s ability to make informed choices related to government, industry, health and a host of other subjects that affect people’s everyday lives.
Yesterday, a group of bloggers and blog publishers filed their own friend-of-the-court brief in the case. The claims in this brief echoed the first one, stating:
The “press” to which the First Amendment and California constitution guarantees freedom is not limited to the professional, corporate media. The Framers of our Constitution would not tolerate such a limitation: the patriot pamphleteers had no corporate affiliations, no professional societies, no journalism degrees. Thus, the press must include individual publishers with no editors, professional affiliations, special education or license.
One can’t help but notice that in a certain sense, Judge Kleinberg and the media types seem to be talking past each other. Back in March, Kleinberg explicitly punted on the issue of whether or not Jason O’Grady, the PowerPage writer who posted Apple’s information online, was a journalist, writing that the issue “need not be decided at this juncture.” While his decision to stick firmly to California trademark law and ignore the larger issue at hand may be alarming to those in the media, it remains to be seen if the amicus briefs painting O’Grady as a journalist will have any effect on the court of appeals.
The issue of journalists leaking trade secrets is one with a long, and at times troubling, history. Companies have traditionally had the upper hand in this fight, as they’re granted quite a bit of wiggle room in determining what is, and is not, a trade secret. Consider the famous 1995 CBS tobacco case. The network planned on running a story featuring Jeffrey Wigand, a former Brown & Williamson executive, who claimed that the tobacco company knew nicotine was addictive. After some initial publicity, CBS backed away from the story because of fears that the tobacco company would sue over Wigand’s disclosure of confidential information. After a ton of bad PR, of course, CBS ran the story — but the threat of a lawsuit almost shut the whole thing down.
There’s no question that the news companies and bloggers filing these briefs are doing so for two important, and interrelated reasons: To keep First Amendment rights as open to interpretation as possible, and to protect their own interests. Luckily, the two reasons dovetail nicely. As the brief filed by the newspaper owners notes: “Recent corporate scandals involving Worldcom, Enron and the tobacco industry all undoubtedly involved the reporting of information that the companies involved would have preferred to remain unknown to the public … Just because a statute seeks to protect secrecy of such information does not mean that the First Amendment protections provided to the news media to inform the public are wiped away.”
Self-interested or not, the news companies can do little else but take up the fight for PowerPage, because in the end, it’s their fight, too.
–Paul McLeary
Paul McLeary is a former CJR staff writer. Since 2008, he has covered the Pentagon for Foreign Policy, Defense News, Breaking Defense, and other outlets. He is currently a defense reporter for Politico.