Opinion: Apple, reporters, and judicial cowardice

Judicial cowardice

The twists and turns on this road are somewhat dizzying. In the portion of the appeal dealing with the potential conflicts between disclosing e-mails and the Stored Communications Act of 1986, the Sixth District Appellate Court approvingly cited Rancho Publications v. Superior Court (68 Cal. App. 4th 1538 [1999]), a Fourth Appellate District case, because it justified the court intervening in a case of reporter privilege. In its briefs, Apple cited the same case because it notes that the burden is on the journalist asserting immunity to “prove [that] all the requirements of the shield law have been met.”

If the appellate court agrees that Rancho Publications is on point, it must agree with the idea that journalists who claim the privilege must establish that they were engaged in “legitimate journalistic purposes” or “exercising judgmental discretion in such activities.” The trial court found O’Grady did not meet that burden, a significant reason for denying O’Grady’s request for a protective order against Apple’s subpoena to his ISP. If the appellate court wants to grant O’Grady the journalist’s privilege, it should have to find evidence that he met this burden. Right?

Not so much. The appellate ruling states:

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.

In two consecutive sentences, the court refuses to define the “legitimate journalistic purposes” that previous rulings require petitioners claiming the journalist’s privilege to demonstrate, and then declares that O’Grady was involved in the “gathering and dissemination of news .” The court refuses to explain what the required “journalistic purposes” are but declares, by fiat, that petitioners were engaged in exactly those undefined purposes!

At the very least, this is a stunning abdication of judicial responsibility; at most, a craven display of judicial cowardice. It means that in the Sixth Appellate District of California, as of right now, news is like pornography — the justices refuse to define it but know it when they see it. The appellate court goes on at some length about how horrible it would be for any court to distinguish between “legitimate” and “illegitimate” news, even though a previous ruling that the court already cited approvingly says that’s exactly what the court must do. And while refusing to distinguish between the two on principle, the court blithely charges forward and decides that petitioner O’Grady was engaged in the very action that the court won’t define.

Apple’s argument that publishing its document and drawings verbatim was not “journalism” did not impress the appellate court. It ruled, “An absence of editorial judgment cannot be inferred merely from the fact that some source material is published verbatim.” The court theorizes that the only reason newspapers and magazines haven’t published source material “at length” before is “the constraints of pre-digital publishing technology, which compelled an editor to decide how to use the limited space afforded by a particular publications.”

Digital publications don’t have that problem, the court said, and should be commended for providing full source material instead of subjecting readers “to the editors’ own ‘spin’ on a story.” The problem with this view, of course, is that no newspaper or magazine publishes verbatim documents from confidential sources without significant articles around them, as O’Grady allegedly did with his “Asteroid” piece. If a magazine came into possession of a copy of the manuscript for the next “Harry Potter” book, could it publish that manuscript in full, or even give away key plot points, with impunity?

No, says the appellate court: “Disclosure of that information may expose [journalists] to liability, but that is not the question immediately of concern; the point here is that such conduct constitutes the gathering and discussion of news, as that phrase must be understood and applied under our shield law.” As it did in an earlier part of the ruling on the Stored Communications Act, the court is basically telling Apple to sue O’Grady directly if it wants recompense for his publication of the company’s private (or “stolen”) documents. And again, the court says that O’Grady was engaged in conduct that meets the definition of “news” that it so conspicuously refuses to provide.

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