On Friday, a California judge ruled that three independent online reporters may be forced to hand over confidential sources in a lawsuit brought by Apple Computer over what the company says were trade secrets that the three had divulged over the internet.
As we have noted previously, the case is significant in that it is one of the first major challenges to the First Amendment rights (and journalistic privileges) of bloggers and those who write for Web sites not considered to be traditional news outlets.
Lawyers for the three sites argued that the reporters were covered by the same First Amendment rights and California Shield laws that protect journalists from revealing their sources and other unpublished material. But Judge James P. Kleinberg turned the matter away from the free speech argument and focused instead on the trade secret angle. He ruled:
The United States and California Supreme Courts have underscored that trade secret laws apply to everyone regardless of their status, title or chosen profession. The California Legislature has not carved out any exception to these statutes for journalists, bloggers or anyone else.
As the New York Times noted on Saturday, Kleinberg said in a 13-page ruling that Apple’s interest in protecting its trade secrets outweighed the public’s right to information about Apple and the right of bloggers to disseminate that information.
Despite the Judge’s clear stance on revealing trade secrets, he dodged the issue of whether the Web sites involved are protected by the same laws that protect professional journalists.
Jason O’Grady, the publisher of PowerPage, one of the sites being sued by Apple, had claimed he should be recognized as a journalist, with the attendant right to refuse to divulge confidential sources. In his decision, Kleinberg responded, “whether he fits the definition of a journalist, reporter, blogger or anything else need not be decided at this juncture for this fundamental reason: there is no license conferred on anyone to violate valid criminal laws.” (Emphasis added.)
Lawyers for the three sites said they were considering appeals to a higher court.
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.