the blogoshield

Sometime this week a Superior Court judge in Santa Clara will rule on whether California's Shield Law -- which protects journalists from being held in contempt for refusing to honor a subpoena of unpublished information, like sources -- applies to blog journalists.

A few bloggers published some information about unreleased Apple products and are now being sued for the sources who may have leaked the information.

Blah blah, I could care less about Apple's guarded secrets ("it's another, smaller, weirder version of the iPod!!!"), but obviously this case matters in the current media climate, where web logs have emerged as an unrivaled source for hidden news and investigative journalism. So, denying them journalistic protection would constitute a serious threat to the principles of free press.

See, here in California we decided that the protected existence of free press was more critical to the health and welfare of our democracy and our society than the ability of courts to successfully subpoena unpublished notes and sources. It's something of an arbitrary trade-off, but the expectation is that journalists will use that protection to make sure the public receives an accurate and balanced picture of the world in which they live. The Shield Law protects a journalist, and not a fence for stolen goods, because society and its lawmakers have deemed the information worth protecting in the case of the former and not the latter.

People don't consider bloggers journalists because lots of them are crackpots. Unfortunately, so are lots of "legitimate" journalists who receive protection from the Shield law simply because they're employed by something that at least refers to itself as a news-gathering organization. But the Shield Law covers any "publisher, editor, reporter, or other person connected with or employed unpon a newspaper, magazine, or other periodical publication, or by a press association or wire service," as well as any "radio or television news reporter or other person connected with or employed by a radio or television station." There's nothing here that explicitly exempts crackpots, bad journalists, or even one-person self-published operations.

Another faulty assumption at work here is that since the technology opens up "journalism" to anyone, the bloggers' credibility and integrity must unavoidably suffer. This is also unsupported, and what's more, if credibility and integrity were at issue in the Shield law, then it would simply explode from subjectivity. Not to mention the fact that "journalism," as defined as the periodic public dispersal of gathered information, has always been open to anyone.

So, it's up to the court to figure out whether blogs fit the tradition mold of news-gathering organizations. The Chronicle article suggests that one criterion might be the exercise of editorial control, though that seems a little vague to me. Perhaps the assumption here is that editors are the people who intervene on the public's behalf, ensuring the accuracy and balance of the information. Maybe I need to learn more about this, but unless news editors sign some contract with the FCC to check their sources, I don't see why they would qualify as gatekeepers of journalistic integrity.

It's probably worth noting that the trade-off I'm describing is theoretical, and won't likely be the main bone of contention in the Apple case. The judge seems poised to either rule against the Shield Law itself, position this case as one of the allowable exceptions to it, or decide that it does not apply to blogs. If he chooses the third option, simple "reporter's privilege" will not help the bloggers because their evidence certainly goes to the heart of the matter. I dunno.

I personally am not likely to be sued for my sources anytime soon. I'd have to be, y'know, a journalist for that to happen. If it does, though, the detailed legal argument above will, I'm confident, provide me with a blogoShield so strong it'll make our missile defense system look like oh wait never mind.