Archive | March 12, 2005

Freedom of the Press vs. Journalism

Andrew MacNeill blogs: Legal status of bloggers debated / Journalists’ shield claimed in response to Apple’s lawsuit “It’s a tough call…for every Ted Roche, who provides links to valuable information, there’s a Madge or a ______ ( put your own name in here)….who is simply providing their own …. Stop – even Ted provides his own commentary on his posts…if I go to a journalism school, does that make me any better? “

Where you went to school shouldn’t make as much a difference as how your publication is representing itself. Andrew and I post blogs of our personal opinions. Don’t like it? Get your own. Post dissenting comments. Don’t read our blogs. Otoh, web sites representing themselves as news sites should be expected to follow some commonly-accepted guidelines and get called on it when they don’t.

I’m not sure what the law is in Canada, but the U.S. system is a mess (surprised?). The U.S. Consititutions’s Bill of Rights provides for “freedom of the press” in Amendment 1:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


The freedom of press that most see expanded to “freedom of expression in speech, print, audio, video, radio, blog” allows for the expression of facts and opinions, especially the freedom to express dissent. Freedom of the press and speech is intended to ensure the citizenry have the right to air political dissent and discussion, vital to a healthy democracy. Whether the next iPod will come in purple just doesn’t enter the discussion at this level.

The Constitution doesn’t speak to the responsibility of professional newspeople to speak the truth.

The tradition that journalists have a right to protect their sources to whom they have given a promise of confidentiality is not a Constitutional right, but it is one that is granted by state “shield laws” in some but not all states. While the confidentiality provisions of client-attorney or doctor-patient privileges can be tested by the standard that the attorney or doctor is licensed to practice their profession, there is no professional licensing of journalists and so I think the question of where to draw the line is more difficult.

One of the other problems I have with the reporting of this issue is the characterization of the web sites involved as blogs. Again, there is no one, firm definition of blog that we can get the millions of bloggers to agree with, but my opinion is that a blog is a journal of a single person or small group expressing their opinions and reporting on, pointing to, and commenting on news. A blog is a journal, but a journal is not capital-J Journalism.

The ThinkSecret web site is a news site, not a diary. It reports news and rumors about what’s happening at Apple. Apple is notoriously close-mouthed about their inventions, preferring that the news of new products arrives with great surprise at their well-managed press presentations. That’s Apple’s choice. They would be foolish if they did not think that the buzz and rumors leading up to each of their shows doesn’t raise the level of expectation and excitement. Buzz is good.

On the other hand, news is news and gets reported. Some of the news is rumor, some of it is wrong. Capital-J Journalists get people to pay for their New York Times by maintaining a high level of integrity and following the principles of Journalism: impartiality, verification, objectivity. Obviously, even the “newspaper of record” is not perfect, with the failings in recent years of the Jason Blair incident and the questionable association of Judith Miller and Ahmad Chalabi. Supermarket tabloids are at the other end of the spectrum. The rest of the world falls in between. ThinkSecret is a news site, and therefore its owner a journalist of a sort. My blog is my portal for my opinion and therefore not journalism.

Finally, the judge ruled that the web sites were releasing information that Apple claimed were trade secrets, and therefore effectively dealing in stolen property. This is a terrible precedent if it is allowed to stand. Who rules what a company can claim as a trade secret and demand its release be persecuted as a criminal offense? Can any rumor, speculation or allegation covered by the press be considered felonious stealing of private property? How are whistle-blowers protected by this?

Apple has a problem with someone(s) inside their organization leaking information the company would prefer remain confidential. (It may not even be a mole, but rather a supplier or vendor – or bartender.) The person(s) may or may not be under contractual agreements with Apple forbidding such disclosures. (If Apple Marketing has half the brains I think they do, they have people intentionally leaking similar information.) Apple has a civil, contractual problem with those individuals and perhaps a criminal case. Once that individual publicizes (“makes public”) that information, the press is under no obligation to deal with it any differently than any other information. Does a newspaper receiving an anonymous tip have to check if the tipster is under contract to not reveal such information? The discloser may be committing a crime, but is the receiver? “Receiving stolen property” is a crime, but is “receiving information a company might claim is protected trade secrets?” Googling the phrases “according to ThinkSecret” and “according to Think Secret” comes up with hundreds of hit from other media outlets like, CNN and The Register. Are they dealing with “stolen property,” too?

There are limits to that argument of course. A patented process is made public, but there is still a licensing requirement to use it. Copyrighted materials have pretty clear limitations. But information held confidential within a company? There’s a slippery slope here.

Intellectual property is not real property

“If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.”

— George Bernard Shaw

Apple claims Trade Secrets stolen by rumor web sites

Dan Gillmor blogs Apple’s “Trade Secrets”. “Reporting on business, if this bad ruling is upheld on appeal, will be a great deal harder in the future.”

Andrew MacNeill posted something similar on his blog, and I started a reply in a comment there, thought a blog entry might be better, and (scope creep!), it grew into a full-fledged essay. I’m still working on that one, and it’s a bit scatter-brained, but wanted to save it to disk before it vanished into the ether… net.

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