Two views of the Apple case

The New York Times and Business Week are exploring the case of Apple versus the Web publishers. Both pieces are worth reading, but the Times piece is more honest, because it avoids the MSM stereotypes of the blogging community (probably thanks to Jeff Jarvis and his dialog with Times editor, Bill Keller).

Susan Crawford, a law professor at Cardozo law school of Yeshiva University (and a blogger herself), told the Times that the steps Apple has asked the court to take open a broader question.

“Under what circumstances should an online forum be forced to disclose a source behind information that they’re posting?” Ms. Crawford said. “There is no principled distinction between a New York Times reporter and a blogger for these purposes. Both operate as news sources for wide swaths of the general public.”
The article notes that regardless of the judge’s decision, it will likely be appealed. It quotes UCLA law professor Eugene Volokh as saying the issue of liability for Web sites “turns out to be an unresolved question of First Amendment law.”
“As the mainstream media has become more and more corporate and more and more like the governmental and corporate bodies that mainstream journalists used to report on,” (Brad Friedman, who describes himself as an investigative blogger) said, “a lot of this stuff has fallen now to the bloggers — to do what mainstream folks used to do. It’s still serving the exact same purpose: keeping the bad guys honest.”
The problem with the Business Week article is that the writer (Jessi Hempel) spouts the same old MSM nonsense about bloggers:
However, blogs have also fast gained a reputation for inaccuracy that threatens to erode their writers’ claim to the title of journalist. Just as these sites have been touted as the new pillars of American democracy for their ability to ensure that any literate person can publish, they have also proven to be swirling rumor mills. In traditional media, the same legal rights that allow a journalist to protect sources also hold such writers accountable to report the truth. If journalists stray from what’s true, they can be charged with libel.
Clearly, the writer feels that “professional” responsibilities translate to free speech protections, and that’s just hogwash. This particular quote also has Dan Gillmor looking for a “clarification” from Business Week:
Well, sure, they can be sued for libel. But this piece suggests that pro journalists have more incentive than bloggers to tell the truth, and thus sets up the reader to think that the professionals therefore deserve more protection.

False. In fact, bloggers are hardly immune from libel laws. They, too, can be sued, as Yale law professor Jack Balkin noted a long time ago. (See also this story in Online Journalism Review.)

Professionals get sued more often, no doubt, but that’s almost certainly because they work for organizations with deep pockets — and because the damage they can cause when they get things wrong is greater.

I hope Business Week will clarify its story.

As I tried to point out to commenters in a previous post, this case isn’t so much about Apple or what Apple is seeking as it is about the potential declaration that a group of journalists (bloggers and other online publishers) aren’t journalists and, therefore, don’t “qualify” for First Amendment and state shield law protections.

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