christophe thinks out loud

You're Not The Boss Of Me

So, to almost no one's surprise, the judge in the Apple vs. rumor site case ruled that California's journalist shield law does not apply to civil lawsuits over trade secret matters. (Technically, this is not a lawsuit against the blogs, btw, but Apple's attempt to enforce a subpoena against them.)

Of course, one could be forgiven for thinking that the ruling was something else, given the reaction of the blogosphere. For example, SFist stated that the ruling was that “California's shield law ... didn't apply to bloggers ...”. MacWorld went even farther, raising the alarm that the judge “disagreed with lawyers arguements [sic] that online publications are covered by the First Amendment.” (Quote from the RSS summary.)

Woo-hoo! Now we're cookin' with gas! Blogs aren't journalists? Blogs aren't covered by the First Amendment? How dare they! Let's turn our sense of thwarted entitlement up to 11!

Of course, the ruling said neither of those things. What's going on is that there is a free-floating narrative that's been kicking around the blogosphere for a while (given a tremendous boost by the last election), which is:

Blogs are too real journalism! They're more journalism than those stupid old newspapers! We break more news earlier than stupid old newspapers, and no one gives us any respect. No one appreciates how hip and with it and cutting edge we are, and we should get all the same goodies as those stupid old newspapers!

The Apple vs. blog lawsuit was custom-made for that narrative, because it seems to have something to do with the particular status of blogs vs. newspapers (and other traditional journalism). But it doesn't. It has nothing to do with it. Doesn't touch on it at all.

The issue is, was, and always will be in this suit: Does the California journalist shield law offer a defense against a lawsuit brought on the basis of trade secret law? Reasonable people can disagree on this point, but the judge said “no,” and no one should be surprised by this ruling; the case law definitely points that way. The reason that traditional journalists don't often get caught by this is not because the courts are in awe of them; it's because traditional journalists usually don't do stupid things like publish unattributed rumors that are likely to get them sued under trade secret law. (Daring Fireball makes this point far more eloquently than I can.)

So, in fact, this whole case rather contradicts the narrative that blogs aren't being taken seriously. Apple is certainly taking them seriously. What it does mean is that blogs are expected to have the same responsibilities as traditional media, and that means taking it on the chin if they publish things that could get them sued. To act otherwise is to act like an adolescent who starts complaining about their “rights as a human being” as a way of avoiding taking out the trash.