Santa CLARA County Superior Court Judge James Kleinberg had one of the most difficult and controversial of contemporary media issues in front of him early this month and he neatly sidestepped it.
Kleinberg was presiding over a lawsuit brought by Apple Computer Inc., charging that three bloggers had published confidential product information in violation of state law. Apple wanted to know which of the company's employees had leaked this information to the bloggers, thus violating their nondisclosure agreements with Apple as well as the California Uniform Trade Secrets Act.
In other words, Apple wanted the bloggers to identify their confidential sources. The bloggers responded by asserting the reporter's privilege under the California shield law, which says reporters do not have to divulge their confidential sources.
In other words, the bloggers said they were reporters -- journalists. Are they? Kleinberg declined to say.
He ruled in Apple's favor without addressing that issue. No one -- neither a blogger nor a traditional journalist -- had the right to publish the information that Apple claimed was confidential, he said. Doing so, he said, is publishing "stolen property."
The case attracted widespread media attention, attention that Kleinberg implicitly acknowledged when he said, "Defining what is a 'journalist' has become more complicated as the variety of media has expanded. But even if the [bloggers] ... are journalists, this is not the equivalent of a free pass.... The journalist's privilege is not absolute."
Kurt Opsahl, attorney for the Electronic Frontier Foundation, who represented the bloggers in the Apple case, said Kleinberg's opinion "should be concerning to reporters of all stripes, especially those who report in the financial or trade press and are routinely reporting about companies and their products."
Agreed. But I'm far more interested at the moment in the issue Kleinberg ignored than in the one he adjudicated.
Are bloggers entitled to the same constitutional protection as traditional print and broadcast journalists?
Given the explosive growth of the blogosphere, some judge is bound to rule on the question one day soon, and when he does, I hope he says the nation's estimated 8 million bloggers are not entitled to the same constitutional protection as traditional journalists -- essentially newspaper, magazine, radio and television reporters and editors.
This statement will surely bring me an avalanche of angry e-mail from bloggers and their acolytes, cyber citizens convinced that I'm just a self-serving apologist for the soon-to-be-obsolete media that pay my salary.
It isn't easy to define what a journalist is -- or isn't. Forty or 50 years ago, some might have dismissed I.F. Stone as the print equivalent of a blogger, writing and publishing his independent, muckraking "I.F. Stone Weekly." But Stone was an experienced journalist, and his Weekly did not traffic in gossip or rumor. He was so highly regarded by his peers that he was widely known as "the conscience of investigative journalism."
BLOGGERS require no journalistic experience. All they need is computer access and the desire to blog. There are other, even important differences between bloggers and mainstream journalists, perhaps the most significant being that bloggers pride themselves on being part of an unmediated medium, giving their readers unfiltered information. And therein lies the problem.
When I or virtually any other mainstream journalist writes something, it goes through several filters before the reader sees it. At least four experienced Times editors will have examined this column, for example. They will have checked it for accuracy, fairness, grammar, taste and libel, among other things.
If I'm careless -- if I am guilty of what the courts call a "reckless disregard for the truth" -- The Times could be sued for libel ... and could lose a lot of money. With that thought -- as well as our own personal and professional commitments to accuracy and fairness -- very much in mind, I and my editors all try hard to be sure that what appears in the paper is just that, accurate and fair.
Do I sometimes make mistakes? Yes, I'm only human. Do my editors always catch my mistakes? Most of the time, they do. But not always. They're human too. The "For the Record" corrections published on Page 2 of The Times every day make our human fallibility only too clear.
Shield laws (and the 1st Amendment guarantee of freedom of the press, the philosophical progenitor of these laws) were created to enable the media as an institution to inform the citizenry, without government interference.
And it's the institutional safeguards of the traditional media that differentiate them from bloggers and the blogosphere, even if those safeguards sometimes fail. When they do, as they clearly did in the case of several recent media scandals, heads roll.
Many bloggers -- not all, perhaps not even most -- don't seem to worry much about being accurate. Or fair. They just want to get their opinions -- and their "scoops" -- out there as fast as they pop into their brains. One of the great advantages of the Internet, many Web lovers have told me, is that it's easy to correct an error there. You can do it instantly, as soon as the error is called to your attention, instead of having to wait until the next day's paper.
But the knowledge that you can correct errors quickly, combined with the absence of editors or filters, encourages laziness, carelessness and inaccuracy, and I don't think the reporter's privilege to maintain confidential sources should be granted to such practitioners of what is at best pseudo-journalism.
I'm not saying that all bloggers are lazy, careless or inaccurate. I'm sure many take as much pride in their work -- their professionalism -- as I do.
Certainly, some bloggers practice what anyone would consider "journalism" in its roughest form -- they provide news. And just as surely, bloggers deserve credit for, among other things, being the first to discredit Dan Rather's use of documents of dubious origin and legitimacy to accuse President Bush of having received special treatment in the National Guard.
BUT bloggers also took the lead in circulating speculation that what appeared to be a bulge beneath Bush's jacket during his first debate with Sen. John Kerry might have been some kind of transmission device to enable his advisors to feed him answers.
No credible evidence has emerged to support that charge.
Equally irresponsible, it was yet another blogger -- if he can be so characterized -- Matt Drudge, who first posted the erroneous story last year alleging that Kerry had had an affair with a young intern.
Drudge may be more a tipster and a gossip than a true blogger, but I see him as part of the same solipsistic, self-aggrandizing journalist-wannabe genre, and I don't think the reporter's shield law should be available to anyone so quick to disseminate inaccurate information, with no editors to examine or restrain him.
I feel particularly strongly about this now, at a time when the Bush administration is hounding reporters in several cases to divulge their confidential sources or face prison for contempt.
Reporters in 31 states, including California, as well as Washington, D.C., are protected by shield laws. Most of those laws -- and California's in particular -- provide more protection than does the 1st Amendment itself. That's why the Bush administration is pursuing its cases in federal court, where state shield laws don't apply. That's also why many journalists -- and several congressmen -- are actively seeking a federal shield law.
I strongly favor such a law, and in this climate we have to be careful about when and under what circumstances we apply and assert the journalist's privilege. If the courts allow every Tom, Dick and Matt who wants to call himself a journalist to invoke the privilege to protect confidential sources, the public will become even less trusting than it already is of all journalists.
That would ultimately damage society as much as it would the media.
David Shaw can be reached at firstname.lastname@example.org. To read his previous "Media Matters" columns, please go to latimes.com/shaw-media.