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Can Bloggers Invoke the Journalist's Privilege to Protect Confidential Sources Who Leak Trade Secrets?
A Suit Filed by Apple Computer Raises the Question

Tuesday, Apr. 26, 2005

Recently, eighty California bloggers who call themselves the Bear Flag League filed >an amicus curiae (friend of the court) brief in an ongoing, high-profile case. (A "blogger" is a person who writes an online journal, or log, known as a "Weblog," or "blog" for short.) Their brief argues that not only Internet news sites, but also those among bloggers who count as "news gatherers or news reporters," should be treated as journalists under the law.

The underlying case pits Apple Computer against a number of "John Doe" defendants who are alleged to have leaked Apple's trade secrets on the Internet. Apple, in trying to figure out these defendants' identities, sent subpoenas to several bloggers who had printed the leaked information. The current fight is over whether the bloggers must disclose the defendants' identities even if they promised them confidentiality. (For more detail on the case, see Paul Milo's excellent article in Editor and Publisher online.)

What would change in this case if news sites -- and bloggers like those in the Bear Flag League - were, indeed, treated as journalists?

As I discussed in a prior column on the Valerie Plame leak investigation, thus far the U.S. Supreme Court has declined to recognize a broad privilege, based on the First Amendment, which protects a journalist's confidential sources -- the so-called "journalist's privilege." But in this California case, "journalist" status still matters very much, for the California Constitution protects California journalists' confidential sources.

Thus, the stakes here are high: It will be much harder for Apple to figure out who leaked its information if the blogger sites that printed it have the legal right to protect their confidential sources. Nevertheless, I will argue that the sites should have that right.

Why the Bear Flag League Is Correct: The Danger of Government Saying Who Is a Journalist

To begin, I agree with the Bear Flag League's argument: Bloggers should benefit from any privilege that extends to journalists. The alternative is for a court to decide, by looking to professional credentials and past activities, who is - and is not - a journalist. And in my view, that alternative is unacceptable - whether the journalism is online or off.

In a case I discussed in an earlier column, a court tried to deny Vanessa Leggett the journalist's privilege - and, indeed, ended up sending her to jail for five months because she refused to comply with a ruling to turn over her notes - because she was a "virtually unpublished freelance writer."

It was uncontroverted that Leggett, an English professor, was taking notes for a nonfiction book - one that was intended to be a work of journalism. But it would have been her first book of any kind. For this reason, the court refused to deem Leggett a "journalist" - even though no one disputed she was researching a journalistic work.

That was a mistake. As I noted in my prior column, the prosecutors who went after Leggett would never argue that a prosecutor on his or her first day in the office is not "really"a prosecutor. For every profession, there must be a first time practicing it.

Requiring experience, then, is a mistake when one tries to determine if a particular person is a journalist. So is requiring elite credentials from traditional media organizations.

For one thing, elite credentials - like experience -- don't always correlate with high-quality journalism. It bears remembering that in the recent fight between bloggers and CBS News anchor Dan Rather, bloggers prevailed. It also bears remembering that it was bloggers - not a rival network - who took Rather on in the first place.

Moreover, as competitive as elite journalists are with each other, they are often collegial too - to the point of being incestuous. They may attend each other's dinner parties and weddings; they all move between the same small, elite group of publications, and may have attended the same elite journalism schools.

Accordingly, outside journalists - including bloggers -- may be willing to take aim more quickly, speak more harshly, and investigate more thoroughly than insider journalists, especially (but not only) when the story is a story about the media.

The Drudge Report is an ongoing reminder of the value an outsider's independence and candor can bring. And what is The Drudge Report, really, but a big blog full of carefully-chosen links? Remember the Drudge Report's origin: Matt Drudge reported on the Lewinsky scandal while few - if any - in the elite media were willing to believe what they were hearing was true, or even if they did believe it, to print it.

We should also think carefully before we allow courts to decide which organizations are "professional" enough to be journalists. Informal solo journalists - the late, beloved Hunter S. Thompson comes to mind - have provided some of this country's greatest journalism. They have also had just the kind of personalities and stances likely to annoy a court into trying to throw them out of the magic legal circle of journalism, and thus deny them the journalist's privilege.

Thus, I would deem any blogger a journalist. Interestingly, by taking this position, I would go further than even the Bear Flag League does - arguing that this benefit should extend to all bloggers, not just those that qualify as repeat "news gatherers" or "news reporters."

Just as it is a mistake to elevate traditional media over Internet media, including blogs, so too it would be a mistake to elevate certain "journalist bloggers" over other bloggers. Bloggers ought to unite to conquer - not replicate the hierarchies of traditional journalism on the Internet; the Bear Flag League's divisive stand is a tactical mistake.

Bloggers Take the Risks Journalists Do, Under Defamation and Trade Secrets Law

Those who doubt that bloggers should share journalists' legal privileges, should consider that bloggers already share journalists' legal risks.

Although many bloggers may not be aware of this, the law considers them just as much a publisher as the New York Times Corporation, to the extent that they are posting their own words. That means that bloggers can be liable for defamation, and for dissemination of trade secrets - among other torts and wrongs - just as journalists can.

Defamation is the publication, with a certain state of mind, of false information that causes harm. And Internet posting counts as "publication." Similarly, revealing trade secrets on the Internet can be just as illegal - and harmful - as, say, putting them on a billboard in Times Square.

And unlike traditional journalists, bloggers can be more vulnerable - for unlike real-world journalists, they probably will not have a deep-pocketed institution with powerful lawyers to pay for, and mount, their defense.

Elite journalists, then, have a practical advantage over bloggers, when it comes to lawsuits - whether these journalists are writing on the Internet or not. They don't have to worry about being bankrupted by the suits; their employers are apt to pay for their defense. But bloggers, who are self-employed, are out in the cold when it comes to paying to defend defamation or trade secrets litigation.

As a practical matter, then, bloggers (like all self-employed writers) are especially vulnerable to suits. In light of this reality , shouldn't they at least be entitled to the legal protection other journalists enjoy - through statutes and state constitutions that establish a journalist's privilege?

(Others on the Internet also enjoy a separate, special immunity - but bloggers are not among them. By statute, Congress has given some of those who host speech, but do not write it, legal immunity. As I explained in a previous column, search engines like Google may well benefit from this immunity. So do ISPs, message board hosts, and the like. But not bloggers - at least to the extent that they write their own posts, rather than hosting or linking to others'.)

The Risk: What If Journalists Are Themselves the Initial Perpetrators?

Because bloggers do represent the unity of writer and publisher, there is one final question I want to raise: What if the blogger's source is himself? And what if the source is also a perpetrator?

I considered the source/perpetrator confluence in my earlier column on the Valerie Plame leak investigation. There, I noted that the crime being investigated was the leak of a CIA agent's identity - and that the journalists' sources were likely to be the criminals, the leakers themselves.

There, Robert Novak cited two senior Administration officials as his sources for saying Plame was a CIA agent; certainly, those officials committed a crime. But Novak and the other journalists who printed the information, it appears, probably did not. And suppose Novak and the other journalists were perpetrators - having themselves broken some criminal law, or committed a civil tort (invasion of privacy and intentional infliction of emotional distress come to mind) against Plame. Even so, they were not the initial perpetrators. The first leak happened when the officials contacted Novak (and, perhaps, other journalists as well).

In blogger cases, however, the confluence might be even more dense: What if the source, perpetrator, and journalist are one and the same? Moreover, what if the source is not only a perpetrator - but the initial perpetrator, and thus, in a trade secret case, perhaps the only perpetrator?

As I discussed in a prior column, trade secret law on the Internet is very odd. Once a trade secret is out, it's no longer a secret, so early disseminators of a trade secret are much more likely to be liable than later ones.

In the real world, it's very hard to prove that a prior trade secret is no longer secret and thus no longer legally protected. Traditional media outlets are loath to publish them, for fear of the legal consequences, so a secret, once out, may not be repeated much.

Not so with the Internet: When a certain piece of information can be found - even on one site - by a search by an interested party, is it truly secret anymore? Arguably, only the initial publisher of a trade secret - the one who makes the secret no longer a secret - on the Internet should be liable for the damages that follow.

That leads to a conundrum: If the initial publisher is the only one likely to be on the hook, legally, and if the initial publisher cannot be found because he is a blogger who takes the journalist's privilege as to his source (himself), then trade secret law on the Internet becomes useless.

But this conundrum is based on perjury - and the enforcement of the law always is impeded by perjury. Moreover, perjury can be caught and punished in this situation.

To protect a source, a blogger has to have a source: His source cannot just be himself or herself. Otherwise, defamation and trade secret laws would be gutted. And if under oath, in court, a blogger falsely swears he has a source, he risks a criminal perjury conviction.

Will his perjury ever be discovered? Perhaps. A judge may rule that his privilege must yield to the demands of the case, just as the judge in the Apple case did (though the ruling is on appeal.) If so, then the blogger will have to either expose himself, or finger an innocent person.

In short, those who leak trade secrets and pretend to be journalist-bloggers to cover their tracks should beware: They may be caught in the web they weave.

For this reason, it's much more likely, realistically, that an initial trade secret leaker would employ anonymity to evade being caught, than that he would pretend to be a journalist with a confidential source. Accordingly, the real threat to trade secret law on the Internet remains - as it has been for a while - anonymity.

On the whole, the need to protect trade secrets is not a strong enough reason to deny bloggers the same legal privileges that traditional journalists already enjoy.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden also has experience in criminal motions and appeals. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter.

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