Necessarily indefinable

June 12, 2006

Certain nations in the world are strict about who is allowed to commit acts of journalism. They typically use licensing or accreditation rules to define and control who may gather information and disseminate it to the public. And these nations often tend to be repressive places such as China.

Fortunately, in the United States, First Amendment protections have made it possible to resist, so far, efforts to define who should be considered journalists - leaving it largely up to the marketplace of ideas, not governments, courts or corporations, to sort through all the voices, bestowing credibility as warranted.

Thus we were pleased - and so should the information-consuming public - by a recent California appeals court ruling that conferred the same protections for online journalists' sources as enjoyed by more traditional journalists under that state's shield law.

This was a setback for Apple Computer - yes, cutting-edge Apple, of all companies! - which had won a lower court decision that would have forced a Web site publisher to reveal the source of a leak about an unreleased Apple product. And it was a big victory - the first of its kind - for the emerging world of online journalism.

Apple had argued that Web sites were somehow not as journalistically legitimate as, say, traditional publishers of news and thus were not entitled to the same source protections. Many states, Maryland included, have some form of such shield laws to protect the anonymity of journalists' sources, though often they are written in ways that do not explicitly cover online journalism.

In ruling on this case, the three-judge appeals court in California's 6th District wrote something worth repeating here:

"We decline the implicit invitation to embroil ourselves in what constitutes `legitimate journalism.' ... We can think of no workable test or principle that would distinguish `legitimate' from `illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First 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 ... marketplace."

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