The Gathering Storms Over Speech

Apple Computer's disgusting attack on three online journalism sites, in a witch hunt to find out who (if anyone) inside the company leaked information about allegedly upcoming products, has taken a nasty turn. Too bad it's not surprising -- and journalists of all kinds should be paying attention.

A judge in California has decided that the sites don't qualify as "journalism" (AP) under state law and/or the First Amendment. By his bizarre and dangerous standard, I apparently stopped being a journalist the day I left my newspaper job after a quarter-century of writing for newspapers. (Note: At the request of lawyers for the sites, I've filed declarations -- here (104k PDF) and here (1MB PDF) -- saying that in my opinion these sites are performing a journalistic function. I haven't been paid to do so.)

Apple's bullying is bad enough. But the California case is just one of several harbingers of trouble for the online journalism world.

Another was the deliberate provocation from a member of the Federal Elections Commission, Bradley Smith, who's a harsh opponent of the McCain-Feingold law regulating campaign finance. He told CNet that current law requires the FEC to regulate the speech of bloggers and other online denizens who dare to discuss politics.

I regard this more as saber-rattling than a serious threat, at least for now. And it's also clear that Smith is trying to get Congress to punch a hole in the law to make it ineffective. I find myself agreeing increasingly with folks on the political right, including the Heritage Foundation's Mark Tapscott, who (among others) observes that the law is becoming an excuse for the outright regulation, and suppression, of speech.

As someone who supported the intent of McCain-Feingold but now agrees it needs reform if not repeal (and then try again with something better), I wish there was some recognition from those who want to torpedo the law outright that modern politics is being wrecked by the overwhelming influence of money, with serious effects on our republic. When politics becomes a system of one-dollar, one-vote -- and it has become precisely that in recent years -- we need to do something to restore at least a semblance of fairness.

But to use this desire for reform as a bludgeon to wipe out free speech in politics, precisely the kind of speech the nation's founders so ardently wanted to promote, is a perversion of their intent and common sense. Smith's remarks are a red flag waving at the blogging bulls, and they're responding just as he surely hoped -- with fury.

Meanwhile, several weeks ago, two well-meaning members of Congress introduced legislation designed to address the increasing attacks on professional journalists. The Free Flow of Information Act (H.R. 581) has some good points, namely its attempt to give reporters a way to shield sources from unwarranted exposure. But it sharply circumscribes the definition of who's a journalist -- and appears to explicitly exclude bloggers and other non-traditional online journalists.

Who's get the protection? The legislation would give it to:

A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that--

(i) publishes a newspaper, book, magazine, or other periodical;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity; or

(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

In other words, bloggers need not apply unless they work for a major publication or broadcast.

See a pattern?

We're moving toward a system under which only the folks who are deemed to be professionals will be granted the status of journalists, and thereby more rights than the rest of us. This is pernicious in every way.

Mass media journalists and their bosses should be leading the fight against what's happening to bloggers. I fear they won't, because old media typically refuses to defend the rights of new entrants until the threats against the new folks directly threaten everyone. But my former colleagues in Big Media should understand that when we distinguish among kinds of journalists, discriminating against some because they're not working for organizations deemed worthy (or powerful) enough, trouble will arrive soon enough for everyone.

In a world where anyone can be a journalist, we can't let government or Big Media decide who has the right to inform the public about matters of interest or urgency. The priesthood should be dissolving, not gaining strength -- yet rulings and legislation like these move things in precisely the wrong direction.

Comments

[The One True b!X]

On the upside (although not quite as dramatic enough to provide balance, perhaps), there's the OPEN Government Act of 2005 -- HR 867 in the House, S 394 in the Senate -- which among other things would allow bloggers to apply for the fee rates and/or fee waivers that media can request when making FOIA requests.

[Marcus Brandybuck]

Don't be so dark, Dan. This kind of action needs to happen to achieve some of the very things you are passionate about. I do not blame Apple as a matter of course. I fully understand why they want to know who is shooting off their mouth to rumor sites. These individuals are in violation of confidentially covenants and Apple should rightly try to find out who the are. These are not whistle blowers or key sources for what we should be ready to separate out as 'legitimate' journalism. And that is where I am hopeful, that a high standard of practice is set in motion - including the blogsphere's adoption of core journalistic disciplines (e.g., fact checking, source legitimization, etc.). What a waste of the potential power of grassroots journalism if it is dumbed down to some unregulated right to put anything out there. For example, I suppose pornography is free speech, but what a waste of free speech when compared to what we can really do with it.

Keep the faith. It will end well.

[PXLated]

It's an opportunity for you Dan. Form a "blog" version of the Associated Press. Blogs join and become affiliates of a large, "formal", news organization. The individual reporters (bloggers) have their own columns (their blogs) and the parent produces a news site pulling from all those blogs. The bloggers are formal stringers. I'm assuming that the API is considered a "news" organization and has all the protections of mainstream press. The best defense is offense.

[steve]

I also fail to see what's wrong with Apple's suit. Calling Think Secret a blog is a bit of a stretch, for one thing - it's just a commercial website selling advertising space, period. And if they knowingly solicited Apple employees or other NDA-covered persons to break their NDA's, then that is against the law. Apple isn't even suing for damages from what I understand, they are just suing to get the names of their own employees who have broken their NDA's. That sounds like normal business to me - the NDA's don't mean anything if they can't be enforced (including discovery).
How'd you like it if a commercial operation like Think Secret posted your personal information, and you had no recourse to find out at least how they got it?

[BillSaysThis]

PXLated said what I was thinking right off. Nothing in the proposed legislation you quoted says that a qualifying organization must be for profit nor that writers be paid or formal employees. In other words should be easy enough to make the distinction meaningless.

Actually, that legislation accompanied by this type of organization providing cover would negate suits of the type filed by Apple as well as allow bloggers access in ways currently limited to "recognized" press.

[Anna]

Ditto to PXlated and Bill for the idea of forming a "BPI". May I suggest that for ours, there be a system of disclosures, so the writer's vested interests and ethics are clear to the reader? (And the "Jeff Gannon"-style bloggers could go and form their own, disclosure-free "WPI")

[David Mohring]

Is it time to form one or more publishing/production/broadcasting "entity" organizations to act as front for bloggers, podcasters and activists?

The organization could let bloggers sign up and using RSS/Atom aggregation, the organization could publish selected content in a newspaper like manner or broadcast stories in audio/vidio format. By setting aside a proportion of publish space for new contributers, it would allow bloggers to gain journalist credentials.

Selected content could be published by the organization in newspaper and broadcasts. The content could also be distributed in a online Peer to Peer manner ( bittorrent and peercast http://www.peercast.org/ ). Existing "recognized" media outlets could assist by just including any content from the organization in their papers, broadcasts or even as a channel on cable/satellite.

The organizations could be formed as a co-op, distributing a portion profits from advertising and subcriptions back to the contributers. Even a token amount paid back to the bloggers would assist gaining credentials.

[John]

Big media is attacked by many bloggers because it is a big institution that acts the way large institutions do. But one of the things big institutions have is the power to shape public policy to their benefit. Libel protection was essentially an invention of big media lawyers, for instance.

It seems that we can't attack big institutional media for being big institutions and also demand they use that institutional power to protect those who are standing in the town square calling the big media hypocritical dinosaurs.

Just seems to violate human nature.

[BillSaysThis]

Dan, This seems like something worth discussing with your pals at Poynter, EFF and Creative Commons.

[Bob Perdriau]

Ask yourself what would have happened had Apple's product plans been leaked to the New York Times - say their technology editor David Poque. Would they have made the paper? Not likely.

For one thing there is little or no news value to the information and no compelling public interest associated with printing it. This is not something on the scale of - say - Watergate where the story must be told and sources protected.

The only thing that can come from leaking the private product plans of a public company is damage to the company and its shareholders and - yes - even its fans and customers. This is not a free speech issue. It is an issue where criminal activity and breech of contract was involved. The perpetrator should be punished.

If there is a free speech issue here it is that such a right comes with responibilities.

[Don Thompson]

I believe the Apple case, in itself, is noise. There was nothing involved in that case that really matters. The motivation of any individual involved couldn't be described as anything more than naive excitement. However, what's more worrying is the attempt to discriminate blogging from "professional" journalism. Read John Pilger's 'Tell Me No Lies': there is precious little real journalism in the mainstream press capable of really informing the public due to vested interests; the terrorism "bogeyman"; and political apathy. These issues confirm that personal blogging has real value. Free speech is paramount.

[Brian]

Interesting comments. I find it particularly fascinating how many of the comments seem to defend Apple.

This is a free speech issue of the greatest importance. Of course Apple has the right to track down the leak of their information, fire them, sue them, etc. But that's not what this is about.

The way they are doing it is by demanding that a journalist give up their source. If this were a reporter for the NY Times, there would be no question of the result. The Times would fight Apple, not reveal their source, and win in court. But because this is a blogger, the rules change?

The real question is, "What is a journalist?" Does a blogger qualify?

If a blogger has a following that relies on them for "news," whether that news is the latest bombing in Iraq, or the latest hardware release from Apple, I would think the blogger would fall under the category of "journalist." After all, the definition isn't exactly a narrow one.

A reporter who writes for the National Enquirer is a journalist. An anchor person for Entertainment Tonight is a journalist. Dan Rather is (was?) is journalist. Finally, if you attend a local school board meeting, go home and write about it on your blog, it seems to me you would be a journalist too. After all, "freedom" of the press would tend to imply that anyone is free to talk about an issue, an event, a product. And do it in a public way.

Freedom of the press is not free if it is only reserved for the 5 mega media companies that run over 90% of media in the country. Real freedom of the press is only just being realized in the U.S. through citizen journalists utilizing technologies like blogging, but cases like this show how quickly the established will act to maintain the status quo.

But Apple? The company so proud of individualism, of creativity, of freedom itself, leading the charge? Shame on you. Use your massive resources to pinpoint the whistle blower on your own. Don't kill the messenger and for heaven's sake, support the Constitution.

[Scote]

What I think is especially interesting is that the government fails to see Blogs as what they are: small news operations. Blogs really have much in common with a small, one-man newspaper operation in a community. The difference with blogs is that they have a much wider audience.

Thomas Paine would have been a blogger.

[sfenerule]

Just a suggestion--the proposal may already have enough room for a defense. If a blogger were to use the text-to-speech capabilities of their operating system, save their posts as audio files and stream them, additionally, as an IP 'broadcast', they'd get the protection, no?
"A) an entity that disseminates information by[...]electronic, or other means and that--
ii) operates a radio[...] or a channel or programming service for any such station, network, system, or carrier;[...]"

[Scote]

A note to steve:

Your point that Think Secret is "just a commercial website selling advertising space" misunderstands what a newspaper is: "Just a commercial periodical that sells advertising space." In both cases, the commercial operation is designed to sell advertising space and uses timely news and analysis to get people to read content so that advertisers can reach their audience. There is no difference between Think Secret on that basis.

[jerry]

"I regard this more are saber-rattling than a serious threat, at least for now. And it's also clear that Smith is trying to get Congress to punch a hole in the law to make it ineffective. I find myself agreeing increasingly with folks on the political right, including the Heritage Foundation's Mark Tapscott, who (among others) observes that the law is becoming an excuse for the outright regulation, and suppression, of speech."

Yes, well that happened with the DMCA. It would be nice if a search of their website for "DMCA" turned anything up. However, such a search turns up nothing. Googling heritage foundation dmca also turns up just about zilch. nada. nothing.

Please encourage Tapscott and others to think about that....

[Anspar Jonte]

E plab neesta.

We're living in a Star Trek episode.

[steve]

Scote,
Think Secret was being called a blog, I was pointing out that it's not at all a blog, nothing to do with a newspaper.
Steve

[John Faughnan]

I second David Mohring's comments. The same thoughts must have occurred to a zillion of us. From my own response:

"An obvious short term response is to incorporate the amateur journalists. Create a corporation and charge a small fee to join. Have the corporation publish a newsletter made up of a random selection of member postings. The newsletter is financed by the feeds of the members. All the members are now journalists."

See also

http://jfaughnan.blogspot.com/2005/03/freedom-you-were-nice-to-know-part-xvi.html

[Jon]

I feel sorry for the suckers who went to school and got the journalism degree when all they had to do was put up a weblog and start blabbing.

Oooo, I have a blog! I'm a journalist now!

[David]

Brian,

How would you feel if Think Secret had published Steve Jobs's Social Security Number and Bank Account numbers? Or how about if they had published your numbers?

That's the part missing here, that I wish Dan would cover. Let's say blogs are journalists, fine. I don't have a quarrel with that. At what point does a journalist have responsibility over that which is published? Never? Is that really the position you want to take?

[Dan Gillmor]

David, if a newspaper published Steve Jobs' social security and bank account numbers he'd have a fabulous case for invasion of privacy. Anyone would. There's no comparison with this case, which is about newsworthy information. If you can't see the difference then we'll just have to agree to disagree.

[Walter E. Wallis]

Challenge the authority of courts to compel anyone to testify.

[Burt Naznitsky]

A thief is just a thief, regardless of the label "journalist." This is not an issue of free speech, but the theft of proprietary data belonging to Apple. "Industrial Sabatoge" also fits the bill.

The self appointed "Forth Estate" accomplishes enough damage as is, why extend its self apnnointed privileges to those who assume the mantle, simply because they are utilizing a relatively new media? There is no question in my mind, we need to see a formal (lawful) definition of journalism and journalists, along with enforceable ethical guidelines, but then every journalist would scream "unfair" to the latter.

While it suits you too to inclusively add the issues of political free speech, theft of intellectual posessions and free speech are hardly equals. I'm certain if these same bloggers had stolen your copyrighted writings, you would be singing a different tune.

[Al]

The Press is probably the only private enterprise specifically mentioned in the Constitution for protection. It would seem important to define what qualifies.

Just as I have some knowledge on how to administer cough medicine, it would be ludicrous for me to successfully claim to be a medical doctor.