Opinion: Apple, reporters, and judicial cowardice

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Reversed logic

Wait, it gets better. When finding that e-mail is immune from civil subpoena under the Stored Communications Act, the Sixth District Appellate Court said that since there was a specific list of exemptions in the act, and since civil discovery was not among them, then Congress must not have intended to allow stored e-mail to be subject to non-criminal subpoena.

Similarly, the California reporter’s shield law, both in statute and in the state’s constitution, explicitly lists who is covered in section 2(b) of Article 1, the “Declaration of Rights:” “a publisher, editor, or other person connected with or employed upon a newspaper, magazine, or other perodical publication or wire service.” (Another part of Article 1 covers radio and TV reporters.) Nowhere does this list Web sites, online journals, newsgroups, or any other online medium.

Following the court’s own logic from its analysis of the Stored Communications Act, since neither the voters (in amending the state constitution to include the shield) nor the legislature has listed online writers as protected by the law, and since both bodies are certainly capable of doing so at any time, then it only follows logically that O’Grady is not covered by the shield, as he does not meet any of the enumerated qualifications of the shield law.

But the Sixth District Appellate Court completely reversed its own logic from the first part of this very same ruling. It found that since the purpose of the law was to protect people gathering news, then the law must protect O’Grady, even though his job is not one of those explicitly protected, and even though the court can’t identify how his gathering of “news” is any different than anyone else who’s not covered by the shield. The court wrote:

We can think of no reason to doubt that the operator of a public Web site is a “publisher” for purposes of this language; the primary and core meaning of “to publish” is “[t]o make publicly or generally known; to declare or report openly or publicly; to announce; to tell or noise abroad; also, to propagate, disseminate (a creed or system).” (12 Oxford English Dict. (2d ed. 1989) pp. 784-785.) … Moreover, even if petitioners’ status as “publishers” is debatable, O’Grady and Jade have flatly declared that they are also editors and reporters, and Apple offers no basis to question that characterization.

It’s almost beyond credulity that the court can “think of no reason to doubt that the operator of a public Web site is a ‘publisher’” for purposes of the shield law, because the shield law defines who is covered and O’Grady is not on that list. When “civil subpoena” wasn’t on the list of exemptions specifically listed in the Stored Communications Act, the court shrugged its judicial shoulders and said, “Sorry, but it’s not there, so it’s no exemption and that’s that.” When O’Grady’s job was not on the list of those covered by the shield act, the court all but ignored the list and said it could “think of no reason” not to add O’Grady’s job to the list, because surely lawmakers would have meant to do that had they thought of it.

It is not enough that Apple does not question that O’Grady and Jade are editors and reporters — they must be “connected with or employed upon a newspaper, magazine, or other periodical publication” to qualify for the shield. The court knows that, too, because the very next section of the ruling starts, “We come now to the difficult issue, which is whether the phrase ‘newspaper, magazine, or other periodical publication’ applies to Web sites such as petitioners’.” (Citations omitted.) If the court can’t connect O’Grady’s job to a periodical publication, he’s not eligible for the shield.

The court quickly concedes that O’Grady’s Web site is not a “newspaper,” but quotes an Oxford English Dictionary draft entry for e-zine as “[a] magazine published in electronic form on a computer network, esp. the Internet,” and a legal encyclopedia that says, “Magazines may be published solely on the Internet, or as electronic adjuncts of a print magazine.” O’Grady and petitioners describe their Web sites as “magazines,” but that doesn’t necessarily make it true any more than printing a stolen document is “journalism” just because they say it is.

O’Grady and his counsel want the court to declare that Web sites, known only as Web sites and not as “e-zines” or “magazines,” are protected by the shield law. The court realized it couldn’t declare a Web site to be a magazine, though it appears to have been tempted to accept O’Grady’s word for it since Apple didn’t explicitly argue against it. Instead, it suggests that when the California legislature amended the shield law in 1974 to include magazines and “other periodical publication[s]”, it couldn’t have predicted the rise of digital publications — and yet could not “have meant to exclude them.”

Thanks to the phrase “other periodical publications,” the court believes that the legislature intended to protect “news” beyond what was understood to be a newspaper or magazine in 1974. You might say that the difference from the first part of the ruling is that when writing the Stored Communications Act in 1986, Congress clearly knew that civil subpoenas existed and did not include them, so Congress did not intend for civil discovery to apply to stored e-mail. On the other hand, the California legislature could not have predicted O’Grady’s PowerPage in 1974 (and let’s face it, who could?) so it included an escape clause to let the law apply to other news gatherers.

The court then admits that the legislature specifically described radio and television separately from “other periodical publication[s]” because “the broadcast media represent a radical departure from the preexisting paradigm for news sources. Because no one thought of those media as ‘publications,’ an explicit extension was necessary to ensure their inclusion.”

By that logic, since the Internet was also a radical departure from the preexisting paradigm for news sources, the law would require an explicit extension for that medium as well. But the court doubles back on itself again: “The explicit inclusion of television and radio in the shield law does not imply an exclusion of digital media such as petitioners. As we have noted, the electorate cannot have intended to exclude those media because they did not exist when the law was enacted.”

That argument doesn’t quite add up. The California legislature strengthened the shield law in 2000, when both PowerPage and AppleInsider were a few years old. The legislature clearly understood the existence and prominence of the Internet in the year 2000, and yet chose to revise the law without extending its protections to online journalists.

The court then turns to trying to define “periodical,” to see if O’Grady’s site can possibly be considered one. Unfortunately, the plain definition of “periodical” does not lean in O’Grady’s favor. The court wrote, “It does not appear that petitioners’ Web sites are published in distinct issues at regular, stated, or fixed intervals. Rather, individual articles are added as and when they become ready for publication, so that the home page at a given time may include links to articles posted over the preceding several days.”

However, the court brushes this aside by pointing out that an online dictionary of library science refers to Slate as a periodical. But “periodicals” like Slate and Salon still act like magazines. Every Friday, Slate publishes a Microsoft Word file with every article published that week. Salon Premium subscribers can also get each day’s “issue” in PDF format. That online dictionary of library science mentions Slate because Slate takes steps to act like a periodical. O’Grady’s PowerPage does not.

The court concludes, “It seems likely that the Legislature intended the phrase ‘periodical publication’ to include all ongoing, recurring news publications while excluding non-recurring publications such as books, pamphlets, flyers, and monographs.” The court therefore finds that the petitioners are entitled to protection under the shield, because they are engaged in gathering news — the activity the court refused to define. It’s a lot of work, and a lot of flawed logic, to get to where everyone else already was: Apple did not assert that O’Grady was not a “journalist,” merely that he wasn’t engaged in activities that the shield law protects, like reporting actual news.

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