Friday, April 14, 2006

"It Was All Great Fun 'Till Somebody Got Hurt": Cali Court Set to Define Blogger's First Amendment Rights

The flap over whether or not a blogger, or someone's blog, constitutes a piece of journalism, and whether or not the blogger is entitled to the same first amendment rights as a journalist has made it to the Appellate courts in California and will be decided next week.

oh, great.

Michael S. Malone in his Silicon Insider column details the shitestorm that got stirred up by none other than Apple Computer after it got pissy when ZDNet reporter Jason O'Grady, revealed, on his blog "an arcane Firewire breakout box, code named Asteroid, for Apple's GarageBand podcasting software product."

The Electronic Frontier Foundation has stepped up to help O'Grady with his appeal, while a slew of other folks including Jay Rosen, Glenn Reyonolds and Eugene Volokh are helping prepare the amicus brief. Not to mention that the A.P., L.A. Times, SJ Merc, and the Society of Professional Journalists have stepped up to defend O'Grady.

This is all well and good, but something's a little odd about it all. Let's look at O'Grady's blogger status--he's a reporter, most likely a journalist, who's also keeping a blog. Perhaps Apple has a problem with a reporter doing what he likes both on and off the clock. Or perhaps Apple's peeved that the stuff that O'Grady wrote about didn't appear on ZDNet or some other mainstream outlet. Malone writes:
I think this case really comes down to the definition of "journalist." Ask yourself: If O'Grady's original story had appeared under his byline in The New York Times, would Apple have ever brought suit? Of course not. Note that Apple didn't even have the guts to take on Ziff-Davis, but rather went after O'Grady's poor little ISP. What the Apple lawyers have bet on, it seems, is that they can pivot the case upon the question of whether a blogger is a real journalist or not — and then convince the judge he's not. In other words, Apple v. Does 1-20 is turning into one of those cases that define an era, an attempt to freeze and categorize a world that is undergoing a massive transformation. And whenever you try to do that (from Dred Scott to the latest FCC regulations) you not only get the answer wrong, but you don't even ask the right questions.

I worry, though, about the chilling effect a ruling like this might have on people like myself, who aren't really considered "reporters," who don't have formal journalistic educations but who may publish from time to time; people who might use the term "citizen journalist," yet are also mindful of those who are journalists. I am worried about how municipalities or corrupt local governments might lash out against citizens who find things out and report them on their blogs. I am worried about how this kind of opinion might stifle what is going on out here in the blogosphere, among individuals who desire to have a voice in media rather than just passively sit by and let an ever-present all-encompassing Big Media tell us how we are supposed to think.

If a ruling comes down against O'Grady and his ISP, citizens, who are already pretty frightened by the scare-stories about MySpace, will be even more intimidated into not expressing themselves for fear of being sued by some mega-corporation.

Censorship at its worst.

What is most desperately needed is for there to be some better thinking, and writing about the differences between types and kinds of blogging and journalism.
All bloggers are not journalists. All bloggers do not aspire to be whistle-blowers, corruption-busters, political pundits, internet bullies or compulsive journallers--so to lump us all under one rubric to make us more manageable under the law is, I'm sure, a violation of *some* inalienable right.

Let's just hope that the California Courts, and Apple Computer, don't get the opportunity to determine who we are, and our rights for us.

(thanks to JD Lasica for the link--even if he's tired of the discussions)

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Patricia said...

It'll be very hard to manage the whole blogoshpere, even with a bad court decision. The internets have presented that "herding cats" kind of situation all along. That said, I hope that bloggers hold onto their rights in court.

Tish Grier said...

ah, now if the courts can just *get* with the idea that it's like herding cats. I often think that it's the fact that the cats are actually free range that pisses alot of people off. I would hate to see any sort of fences.

The most powerful fence, though, will always be people's fear. if the courts can increase the fear, they've won either way.