When Macworld asked to reprint some of MWJ ’s coverage of the recent
appellate court decision in O’Grady et al. v. Superior Court (Apple) , we knew were in for a bit of trouble. The issues involved are complex, even for lawyers. The
ruling was 69 pages long, with 67 of those pages having actual legal content on them. MWJ ’s own coverage extended to 21 pages, using reasonably compact type and multiple columns. We knew that, working with the Macworld staff, we’d have to excerpt and edit the analysis down to something more inline with what you expect to see here.
The problem with that idea is that if we could have made it a lot shorter without leaving out key points, it wouldn’t have been 20 pages long in MWJ , either. You might not know it from the reprint, but we admire brevity. The ruling was just too complex to distill to a few talking points and get everything right.
Subsequently, when our best attempt at brevity
appeared on this site three weeks ago, we knew we’d have to leave out too much—and the omissions generated
a lot of comments. The original analysis printed in MWJ started with discussion of the Stored Communications Act, and, while skeptical of the idea that it intended to strip civil courts of subpoena power, recognized that it followed controlling precedent. We were largely struck by the fact that the Court read SCA so narrowly in that section, and then turned around and read the state’s reporter’s shield law incredibly broadly in the same opinion.
Since the reprint omitted MWJ ’s final analysis and conclusions about the court’s opinion, some commenters came away believing that we don’t view Web news as “journalism,” or think that O’Grady’s case had any merit. That’s not the case—we’ve never really questioned that journalism can happen in a variety of outlets, and that sites like
PowerPage probably should qualify under California’s shield law.
The big problems with the appellate court decision are simple: the law includes a narrow list of professions covered by the shield, and “online writer” is not among them. The court read broadly to include O’Grady, even while reading other statutes narrowly when that was necessary to favor his case.
The reporter’s shield in California is qualified, not absolute: two decades of precedent require courts to examine whether the content of an article is in the public interest, among many other factors, before determining if a reporter has to disclose a source under oath anyway. The appellate court brushed all this aside and said it refused to decide what was and was not “news,” while simultaneously declaring that O’Grady’s work was “news.” There are difficult balancing tests that are supposed to be at work here, and the court largely skipped out on them to get to the conclusion that online news should be covered by the shield law, even though the letter of the law does not include it. California’s legislature could easily fix this, but even while strengthening the shield law in 2001, chose not to do so.
All of this and more is covered in the parts of MWJ ’s analysis that were too long for a standard Macworld article. We’re therefore happy to bring you a reprint of the entire analysis, in MWJ ’s standard PDF format, for your holiday weekend reading leisure.
Download the PDF here.
We’re not lawyers, and we’re not sure we’re right. We’re glad we’re not the ones deciding this, because the balance between Freedom of the Press and of property rights is very tricky. We’re not sure any decision would please everyone, but we’re pretty sure a good decision would emphasize both of these constitutional principles and struggle to find a balance.
We don’t think this decision reached that standard, and we’re pleased to work with Macworld.com to bring you our complete argument as to why that’s true, reprinted from MWJ 2006.05.31.
[ PDF file reprinted with permission from MacJournals.com. Copyright 2006, GCSF, Incorporated. The MacJournals.com staff is busy this week on the 2005-2006 MDJ Power 25, to be revealed in full in this weekend’s issue of MWJ. For a free trial that includes this year’s influence list, visit