As long as I’ve written about blogs I’ve made the point that blogging and journalism are separate activities that may or may not overlap. Since this debate has now entered the legal realm, let’s restate this with mathematical precision: Bloggers can be journalists; journalists can be bloggers. Neither state — I Am A Journalist, and I Am A Blogger — excludes the other, but neither guarantees the other. There is an axis of blogger to not-blogger, and an axis of journalist to not-journalist. The two axes are orthogonal, not parallel.
The legal matter that forces us to contemplate such a graph is Apple Computer’s suit against three online journalists in an attempt to get them to reveal the sources they used to publish some advance scoops about forthcoming Apple products.
We’re fortunate to be at a moment in history when changes in technology, begun a decade ago by the rise of the Web and accelerated by the introduction of anyone-can-publish software, mean that the spectrum of journalism has been broadened in ways that were previously unimaginable. The danger in the Apple suit lies in the possibility that a bad court decision — like one a lower court has already delivered in this case — might careless and foolishly decide that in order to be a journalist one has to receive a salary from some operation that some legal authority has defined as a journalistic entity.
That such a definition would be not only wrongheaded but actively harmful to the vibrant and lively democratic free-for-all on today’s Internet is the point of an amicus curiae brief filed today by Stanford Law School’s Center for Internet and Society. I’m proud to be among the signers of this document, which was written by Lauren Gelman of the Stanford center. (Here’s a full list of the amici, with links.) The brief argues that, when the courts need to determine who receives the various legal protections available in some circumstances to working journalists, it should decide who is a journalist by looking at what putative journalists actually do, not who pays their salary or what membership cards they carry or what degrees they hold:
 |
Amici come together to urge this court to hold that Internet publishers, including webloggers who are engaged in the reporting and dissemination functions a journalist performs, may invoke the protection of the journalists’ privilege on equal footing with traditional reporters and news organizations…. The applicability of the newsgatherers’ privilege is determined not by the reporter’s formal status as a ‘professional journalist,’ but rather by the reporter’s functional conduct in gathering information with the purpose of disseminating widely to the public. |
If you take the time to read the somewhat confused state court decision that is now under appeal, you’ll see that the judge’s initial ruling, in favor of Apple and against the Web sites, declares that it doesn’t really matter whether you consider the Apple news sites to be conducting journalism or not, because, the judge seems to be saying, journalists have no business publishing trade secrets anyway.
I’m not enough of a lawyer to try to predict where that argument is headed; it seems of a piece with a variety of assaults taking place today on the rights of journalists to protect their sources. (The parallel amicus brief presented by the AP, a long list of California newspapers and the Reporters’ Committee for the Freedom of the Press tackles this issue.)
What I do know is that, if the New York Times or Time magazine published a scoop from an anonymous source about a forthcoming Apple product, the company wouldn’t be suing the press. So it’s important here for people who do journalism at all points along the spectrum from “pro” to “citizens” to step forward and say: If you ask questions with intent to publish, and you publish information someone considers news, you’re a journalist, and should be treated as one by the courts.
Post Revisions:
There are no revisions for this post.