RED ALERT

   Bad law....
A Santa Clara, Calif. judge has tentatively ruled that the state's reporter's shield law does not protect bloggers, in a case involving Apple Computer and three bloggers who refuse to reveal the names of confidential sources.

Larry Bodine writes about it here and Robert Ambrogi writes about it here. Here's the Mercury News story, by Dawn Chmielewski. Here's the c/net News.com story by Dawn Kawmoto. And here's the IP Roundtable report.

Says the Merc News: "In a case with implications for the freedom to blog, a San Jose judge tentatively ruled Thursday that Apple Computer can force three online publishers to surrender the names of confidential sources who disclosed information about the company's upcoming products."

"Santa Clara County Superior Court Judge James Kleinberg refused to extend to the Web sites a protection that shields journalists from revealing the names of unidentified sources or turning over unpublished material."

"Kleinberg offered no explanation for the preliminary ruling. He will hear arguments today from Apple's attorneys and the Electronic Frontier Foundation, a San Francisco digital rights group representing two of the three Web sites Apple subpoenaed -- Apple Insider and PowerPage."

"The case raises issues about whether those who write for online publications are entitled to the same constitutional protections as their counterparts in more traditional print and broadcast news organizations."

And as Larry Bodine put it, "This is a bad ruling and bad law.  The First Amendment is not limited to corporations that own printing presses.  Free speech applies to all the people, and a blog is a publication just as much as The New York Times."

I agree. First, it's ridiculous to say that journalism can't occur online. Secondly, I'm very concerned about a dangerous trend in the courts trying to get journalists to "out" sources.

There have been some very bad rulings recently, including one that resulted in a veteran NBC newsman Jim Taricani, landing house arrest in Providence, Rhode Island.

Let me put it here in black and white. If I promise a source that I will not reveal his or her identity, I will never reveal his or her identity. Ever. This is a core concept of journalism. Anybody heard of the First Amendment? A free press is part of the checks and balances that keeps a nation free.

I've been published since I was 13. Over the course of my career, I have published many stories that I was able to break only because confidential sources trusted me and were willing to talk to me not-for-attribution. And you would be very, very, very surprised at who the sources were on many of these stories. Deep throats often are very highly placed.

I got the stories, and they were often significant stories, because I had the trust of these sources. Sure, these stories weren't of the magnitude of Watergate or the Pentagon Papers, but in every case, they were matters of deep importance to the participants. And it took courage for the sources to talk to me because had they been "outed" it could have caused them, at a minimum, great embarrassment, and in some cases, it could have damaged their careers. In most cases, confidential sources contacted me because they were upset that an injustice had been done, and the only way to make it right was to make it public.

Some related resources:

My J school's Silha Center on Media Ethics and Law.
Angry Chinese Blogger.
EFF comments.
Apple v. Doe complaint (courtesy of EFF)

Update 3/11: Peter Scheer, my former boss at The Recorder, and now executive director of the California First Amendment Coalition, wrote this opinion in today's issue of The Recorder.

Update 3/13: Apple won the latest round. See commentary.

Update 3/16: Math Class for Poets.