Bloggers and the First Amendment

San Francsico Chronicle reports on the Apple versus bloggers case currently before a local court: Net buzzing on bloggers’ status / First Amendment issues become hot topic in chat rooms.

The case could affect the future of bloggers and Web site publishers because lawyers defending the sites have asked Judge James Kleinberg to rule that the sites should be granted the same First Amendment protections afforded to traditional journalists. Kleinberg has told lawyers for both sides he was leaning toward ruling in Apple’s favor.

"Boy, if Apple wins this case, rumors will dry up faster than a puddle in the Mojave,” said one comment posted anonymously on MacDailyNews.com.

One blogger named "LoomisBoy” found Kleinberg’s tentative ruling "a troubling development, but most likely only a temporary setback for First Amendment rights.”

"Every new form of media in the last 200 years has gone through a similar rite of passage. Blogs (like mine) are as valid a form of ‘press’ as the pamphlet was during the American Revolution," the blogger continued.

"Citizen journalism via Web logs is every bit as protected by the First Amendment as the work of the New York Times and CBS. If the current judge in the Apple Computer case doesn’t recognize that, someone higher up the appeal chain will.

"If Apple is upset that someone within its organization leaked confidential information, they should peruse internal means to stop the leaks and to deal with the offenders. But, in attacking the college student who writes PowerPage (and others), they exhibit a sad lack of appreciation for a free press.”

All sorts of illustrious precedents are being evoked including the Pentagon papers. It’s an interesting case. The general question about blogger’s first ammendment status is pretty much a slam dunk from my perspective but I think there are also complex issues which complicate this particular case.

In what sense is revealing Apple’s latest plans "in the public interest" and in what sense does it hurt its commercial interests? In what sense are these techno rumour sites any different to Drudge and his political/celebrity rumours? Does Drudge or any of these sites really come under the auspice of "citizen journalism"? Drudge is constrained by defamation and privacy laws, what laws should or do protect commercial information. Do these laws over-ride source protection claims?

I think we are comming to a really interesting stage in the evolution of blogger journalism. Blogging can certainly be a form of journalism but in claiming to be a form – even a new form – of journalism there must be some questions about standards of practice. Citizen journalist bloggers may actually develop their own code of practice that is different in some ways to the ethical constraints of mainstream journalists. But there must be a framework for the everyday decision making that goes on in the practice of blogging, a framework that goes beyond I am doing this because I can.

It appears that this case is inspiring this debate to take place. Even in the blogging community there are different perspectives on whether this information should have been published and whether Apple has the right to demand the identity of the source. These are of course two slightly different questions that could well have different answers.

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