Appellate Court Gives Bloggers 'Huge' Victory

Rhett Pardon
SANTA CLARA, Calif. — Bloggers can rejoice.

A California appeal court has ruled that if you gather and disseminate information, you are indeed entitled to the legal and 1st Amendment protections long enjoyed by journalists.

The broad, 69-page ruling, which denied Apple Computer’s request to force bloggers to reveal sources who leaked product information, goes a long way toward putting online and offline journalism on the same legal footing in California.

Gram Ponante, who operates the adult blog site with an adjunct section on, hailed the ruling.

“California's shield law does well in not choosing to join the debate on what constitutes legitimate journalism, as the media by which journalism is disseminated keep changing,” Ponante told XBIZ. “To discriminate against a publishing platform is ridiculous, but bloggers who use animated GIFs just bring accusations of illegitimacy on themselves.”

Ponante emphasized that bloggers, now that they are given the same protections enjoyed by traditional journalists, “need to be doubly aware of engaging in slipshod writing and accreditation.”

“With little to no expense required to blog comes great responsibility,” he said. “That is why I make sure to inform my readers when someone did not say something.”

In the case decided Friday, the California Court of Appeal reversed the order of a lower court denying motions for protective orders filed by the operators of two blog sites.

“We decline the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalism.’ The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here,” the ruling said.

Two years ago, the websites O’Grady’s PowerPage and Apple Insider began publishing articles about a rumored new Cupertino, Calif.-based Apple Computers Inc. product known as Asteroid or Q97.

The stories detailed a product that would allow the creation of digital live sound recordings on Apple computers.

Apple Computer filed suit alleging that unknown individuals wrongfully caused the publication of secret plans for the product on the Internet. The computer makers then sought subpoenas against the publishers and an email provider for one of the sites in order to determine the identity of the bloggers who leaked the information.

Later, the bloggers moved for protective orders citing the reporter’s shield in the California Constitution.

Apple argued that the bloggers weren’t entitled to the shield because they were not engaged in legitimate journalistic activities when they acquired the information.

The court, however, disagreed.

“We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news,” the ruling said. “Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the 1st Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law or process of government, but through the rough and tumble competition of the memetic marketplace.”

The appeal court also held that the subpoenas to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act.

The Electronic Frontier Foundation, whose attorneys represented the bloggers, called the ruling “a huge win.”

“[The] decision is a victory for the rights of journalists, whether online or offline, and for the public at large,” said EFF staff attorney Kurt Opsahl, who argued the case before the court of appeal last month. "The court has upheld the strong protections for the free flow of information to the press, and from the press to the public."

Ponante, who calls his site “the official site of America's beloved porn journalist,” justified Apple’s loss in court.

“As a person whose PowerBook just melted with little to no accountability taken by Apple, I felt a little vindicated that the Cupertino company received some comeuppance at the hands of protected bloggers,” he said.

The case is O’Grady vs. Superior Court (Apple Computer Inc.), No. H028579.