Santa CLARA County Superior Court Judge James Kleinberg had one of the most difficult and controversial of contemporary media issues in front of him early this month and he neatly sidestepped it.
Kleinberg was presiding over a lawsuit brought by Apple Computer Inc., charging that three bloggers had published confidential product information in violation of state law. Apple wanted to know which of the company's employees had leaked this information to the bloggers, thus violating their nondisclosure agreements with Apple as well as the California Uniform Trade Secrets Act.
In other words, Apple wanted the bloggers to identify their confidential sources. The bloggers responded by asserting the reporter's privilege under the California shield law, which says reporters do not have to divulge their confidential sources.
In other words, the bloggers said they were reporters -- journalists. Are they? Kleinberg declined to say.
He ruled in Apple's favor without addressing that issue. No one -- neither a blogger nor a traditional journalist -- had the right to publish the information that Apple claimed was confidential, he said. Doing so, he said, is publishing "stolen property."
The case attracted widespread media attention, attention that Kleinberg implicitly acknowledged when he said, "Defining what is a 'journalist' has become more complicated as the variety of media has expanded. But even if the [bloggers] ... are journalists, this is not the equivalent of a free pass.... The journalist's privilege is not absolute."
Kurt Opsahl, attorney for the Electronic Frontier Foundation, who represented the bloggers in the Apple case, said Kleinberg's opinion "should be concerning to reporters of all stripes, especially those who report in the financial or trade press and are routinely reporting about companies and their products."
Agreed. But I'm far more interested at the moment in the issue Kleinberg ignored than in the one he adjudicated.
Are bloggers entitled to the same constitutional protection as traditional print and broadcast journalists?
Given the explosive growth of the blogosphere, some judge is bound to rule on the question one day soon, and when he does, I hope he says the nation's estimated 8 million bloggers are not entitled to the same constitutional protection as traditional journalists -- essentially newspaper, magazine, radio and television reporters and editors.
This statement will surely bring me an avalanche of angry e-mail from bloggers and their acolytes, cyber citizens convinced that I'm just a self-serving apologist for the soon-to-be-obsolete media that pay my salary.
It isn't easy to define what a journalist is -- or isn't. Forty or 50 years ago, some might have dismissed I.F. Stone as the print equivalent of a blogger, writing and publishing his independent, muckraking "I.F. Stone Weekly." But Stone was an experienced journalist, and his Weekly did not traffic in gossip or rumor. He was so highly regarded by his peers that he was widely known as "the conscience of investigative journalism."
BLOGGERS require no journalistic experience. All they need is computer access and the desire to blog. There are other, even important differences between bloggers and mainstream journalists, perhaps the most significant being that bloggers pride themselves on being part of an unmediated medium, giving their readers unfiltered information. And therein lies the problem.
When I or virtually any other mainstream journalist writes something, it goes through several filters before the reader sees it. At least four experienced Times editors will have examined this column, for example. They will have checked it for accuracy, fairness, grammar, taste and libel, among other things.
If I'm careless -- if I am guilty of what the courts call a "reckless disregard for the truth" -- The Times could be sued for libel ... and could lose a lot of money. With that thought -- as well as our own personal and professional commitments to accuracy and fairness -- very much in mind, I and my editors all try hard to be sure that what appears in the paper is just that, accurate and fair.
Do I sometimes make mistakes? Yes, I'm only human. Do my editors always catch my mistakes? Most of the time, they do. But not always. They're human too. The "For the Record" corrections published on Page 2 of The Times every day make our human fallibility only too clear.
Shield laws (and the 1st Amendment guarantee of freedom of the press, the philosophical progenitor of these laws) were created to enable the media as an institution to inform the citizenry, without government interference.
And it's the institutional safeguards of the traditional media that differentiate them from bloggers and the blogosphere, even if those safeguards sometimes fail. When they do, as they clearly did in the case of several recent media scandals, heads roll.