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.
