The other day, in my original “Apple Bites Back” article, I noted that there was a question pending in a California courtroom over whether or not bloggers are part of “the Press” for purposes of First Amendment (and California Shield Law) analysis.

The “judge” has — well, sort of — made a decision on the question.

Actually, as Ray from misinformation.org put it in his comment to that post, the “judge” essentially side-stepped the issue. To add salt to the wound, he was either incredibly stupid, or deliberately disingenuous, in the way he chose to do so.

On page 3 of his published opinion, James P. Kleinberg, “Judge” of the Superior Court (g-d forbid I should ever practice before him) stated “Movants claim to be ‘journalists.'”

I’ll pause while you wipe from your keyboard the drips of contempt. The “judge” made both his ignorance and his contempt all the clearer in the footnote to that comment:

Some might refer to the moving parties as “bloggers.” The site www.dictionary.reference.com defines blog as “online diary; a personal chronological log of thoughts published on a web page; also called a Weblog, Web log.” Apple Computer, Inc. v. Doe (March 11, 2005) Sup.Ct.Sta.Clara.

Yeah, that’s how I’d characterize AppleInsider and PowerPage, two e-zines that provide virtually no personal information regarding the day-to-day lives of their owners or writers. Heaven forbid the “judge” should check a more encyclopedic definition on Wikipedia.

In fairness, it’s difficult to criticize the “judge.” The opinion comes from the Superior Court of Santa Clara County. For those who don’t know, the closest thing Santa Clara appears to have to a “real” newspaper is The Santa Clara, “proudly serving Santa Clara University since 1922.” This is not to put down The Santa Clara, but with his lack of experience, it would not be surprising to hear that “Judge” Kleinberg thinks that the San Francisco Chronicle is just a repetitive publication of War and Peace.

On the other hand, this “judge” may be gunning for a spot alongside Justice Kennard on the California Supreme Court: He notes that “any casual student” of free speech issues knows that free speech isn’t really free. “[It] is rife with complexities and restrictions.” (Apple, supra, at p. 3.) It’s the “restrictions” column to which the “judge” wishes to add his weight. Kennard — who has yet to meet a constitutional freedom she likes — would be proud.

At page 4, he notes that “Apple has maintained that the information published by the moving parties qualifies as trade secrets under California law.” Well, that settles it. Someone, Apple claims, stole their trade secrets. In perhaps the only correct statement of law in his opinion, the “judge” points out that you’re not allowed to steal trade secrets in California.

What he fails to make note of is that not even Apple is claiming that AppleInsider or PowerPage stole those trade secrets. In fact, there does not appear to be any allegation that either AppleInsider or PowerPage have done anything illegal. Apple just wants them to cough up their sources, so that — sooner or later — Apple can find out who did steal their secrets. It may be the case that whoever told AI and PP the gossip that they published stole the information; it might not be the case — those parties may be innocent of any crimes, as well. They may have heard it from someone who heard it from someone who….

Nobody knows yet. And perhaps they never will. For all Apple knows, the person or persons who told AI and PP the story heard it at a party from someone they don’t even know.

But that didn’t stop the “judge” from steadfastly reinforcing “this state’s strong commitment to the protection of proprietary information…which may…outweigh First Amendment rights.” (Apple, supra, at p. 6.) In the face of this, “movants’ papers and argument is [merely] a recitation of the obvious: the terms and importance of the First Amendment and the value of free speech which this Court recognizes [couldn’t give a rat’s ass about].” (Apple, supra, at p. 7.)

The “judge” may feel he knows a newspaper when he sees it — and he may have decided that AI and PP are no newspapers — but apparently he’s not so adept at reading Schoen v. Schoen 5 F.3d 1289, 1293 (1993) where the Ninth Circuit Court of Appeals stated, “The journalist’s privilege is designed to protect investigative reporting, regardless of the medium used to report the news to the public.” The Court further stated, “What makes journalism journalism is not its format but its content.” (Ibid.) The format of both AI and PP may very well be the format of blogs; the content of both is technology news.

Schoen further stands for the proposition that even non-confidential information — and in the Apple case, we have the stronger fight over confidential informants — is protected. But in Schoen, even where information was obtained from an informant who did not have an expectation of privacy, compulsory discovery via court-enforced subpoena was not permissible. As the Schoen Court, quoting a First Circuit case noted:

The . . . four interests [militating against compulsory discovery] are the threat of administrative and judicial intrusion into the newsgathering and editorial process; the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or of a private party; the disincentive to compile and preserve non-broadcast material; and the burden on journalists’ time and resources in responding to subpoenas.

The court agreed that there was merit to these asserted First Amendment interests. It noted a “lurking and subtle threat” to the vitality of a free press if disclosure of non-confidential information “becomes routine and casually, if not cavalierly, compelled. — Schoen, supra, 5 F.3d at pp. 1294-1295 (bracketed alternation mine; other alternations in the original; citations omitted; footnotes omitted).

Noting the potential damage to the trust between confidential sources and “the press” — which, remember, the Schoen Court indicated was determined “not [based on] its format, but its content” — and the worry that the public would begin to view the press as “an investigative arm of prosecutors and courts[,]” the Schoen Court said,

We find this body of circuit case law and scholarly authority so persuasive that we think it unnecessary to discuss the question further. — Schoen, supra, 5 F.3d at p. 1295.

In the Apple case, the “judge” apparently believes that Apple deposing its own employees would be an “unusual step.” Consequently, even though AI and PP argue that this should be done before any determination that “other sources of information have been exhausted[,]” the “judge” disagrees. Again, the “judge” would do well to read some case law.

After a discussion of the steps taken by plaintiffs in Schoen, the Court notes,

Only by examining a witness live can a lawyer use the skills of his trade to plumb the depths of a witness’ recollection, using to advantage not only what a witness may have admitted in answering interrogatories, but also any new tidbits that usually come out in the course of answering carefully framed and pin-pointed deposition questions. — Schoen, supra, 5 F.3d at p. 1297.

It’s not likely that the number of Apple employees privy to such a significant trade secret is large. Again, in Schoen, the Court said:

The journalist was ordered to disclose his source only after the court held a series of hearings, at which each of the attorneys still alive denied, under oath, that he was the source of the leak. At that point, the only untapped source for the wrongdoer’s identity was the journalist. — Schoen, supra, 5 F.3d at p. 1297.

Similarly, in the Apple case, the journalists should be ordered to disclose their sources only after either a series of hearings held by the court, at which each “exposed” employee still alive denies, under oath, that he is the source of the leak, and at which point the journalists are the only untapped source.

Otherwise, here as in Schoen, “it is too early in the discovery process for [the] journalist privilege to yield.” — Schoen, supra, 5 F.3d at p. 1297.