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Thursday, June 15, 2006

Victory for Bloggers as California Court Says Shield Law Applies

California's Sixth Appellate court denies Apple's attempt to remove bloggers from coverage by that state's shield law for journalists. The court's reasoning gets to the heart of the issue: Does the First Amendment grant publication freedom only to some with particular qualifications or to all who gather and communicate news and views about news?

Here are the key graphs from the court's opinion:

"We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis[m].' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here.

"We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

"Nor does Apple supply any colorable ground for declaring petitioners' activities not to be legitimate newsgathering and dissemination. Apple asserts that petitioners merely reprinted 'verbatim copies' of Apple's internal information while exercising 'no editorial oversight at all.'

"But this characterization, if accepted, furnishes no basis for denying petitioners the protection of the statute. A reporter who uncovers newsworthy documents cannot rationally be denied the protection of the law because the publication for which he works chooses to publish facsimiles of the documents rather than editorial {Slip Opn. Page 37} summaries.

"The shield exists not only to protect editors but equally if not more to protect newsgatherers. The primacy Apple would grant to editorial function cannot be justified by any rationale known to us.

"Moreover, an absence of editorial judgment cannot be inferred merely from the fact that some source material is published verbatim. It may once have been unusual to reproduce source materials at length, but that fact appears attributable to the constraints of pre-digital publishing technology, which compelled an editor to decide how to use the limited space afforded by a particular publication.

"This required decisions not only about what information to include but about how to compress source materials to fit. In short, editors were forced to summarize, paraphrase, and rewrite because there was not room on their pages to do otherwise."

Hugh Hewitt has a lengthy excerpt from the opinion here.