Posted by Eugene Volokh:
Bloggers' Privilege:
[1]Newsday reports:
. . . The Electronic Frontier Foundation said yesterday it would
defend bloggers' right to protect anonymous sources who disclosed
that Apple would release a product code-named "Asteroid."
A lawyer for the group said it's one of the first cases nationwide,
if not the first case, that would address whether Web loggers, or
bloggers, can protect confidential sources. Apple filed the suit
last week in California.
The conflict began after two bloggers disclosed on their Web sites
in November that Apple would release the so-called "Asteroid," an
add-on that would supposedly allow musicians to hook up analog
musical instruments to Macintosh computers. Apple then sued the
"John Does" for violating trade secret laws by disclosing the
information to the bloggers, and the computer maker issued
subpoenas to the bloggers to find out the identities of the John
Does.
The bloggers shouldn't have to disclose the anonymous sources, said
Kurt Opsahl, staff attorney for the foundation.
"In this case, they're very clearly journalists," he said. . . .
EFF, I suspect, will be claiming a privilege under the First
Amendment, but such a privilege is "qualified" rather than absolute --
it's unavailable if a judge finds that the information is really
necessary to an important case, and there are no other ways of getting
it. Also, whether such a privilege even exists under the First
Amendment is hotly disputed. I think the Supreme Court rejected it in
1972. Since then, though, many federal court of appeals decisions,
including some in the Ninth Circuit, have accepted it (based on what I
think is a misreading of the Court's opinion), and the Court hasn't
stepped in to overrule them; on the other hand, two other federal
courts of appeals have rejected the privilege, as has one decision in
the Ninth Circuit. So the federal privilege claim has problems.
But EFF will also be claiming a privilege under [2]article 1, section
2(b) of the California Constitution, which is quite explicit:
b) A publisher, editor, reporter, or other person connected with or
employed upon a newspaper, magazine, or other periodical
publication, or by a press association or wire service, or any
person who has been so connected or employed, shall not be adjudged
in contempt by a judicial, legislative, or administrative body, or
any other body having the power to issue subpoenas, for refusing to
disclose the source of any information procured while so connected
or employed for publication in a newspaper, magazine or other
periodical publication . . . .
So if a blog is considered a "periodical publication" -- which most
blogs are (the exact "period" in the sense of interval between posts
isn't fixed, as it is for a newspaper, but they are "periodical" in
the sense that they publish repeatedly, and are usually expected to
have new material at least as often as many standard periodicals) --
then it sounds like they have an open-and-shut case. We don't even
have to ask whether bloggers are "journalists"; so long as they are
"person[s] connected with . . . [a] periodical publication," they are
entitled to disregard subpoenas that call on them "to disclose the
source of any information procured while so connected . . . for
publication in . . . [a] periodical publication."
References
1.
http://www.newsday.com/business/ny-bzeff114110936jan11,0,3143210.story?coll=ny-business-headlines
2.
http://www.leginfo.ca.gov/cgi-bin/waisgate?waisdocid=65866615365+0+0+0&waisaction=retrieve
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