jkOnTheRun is a tech blog so I try to avoid a lot of discussion about blogging since so many (millions?) other sites do enough of that but a recent event is serious enough that I want to give a warning to all bloggers and web site owners and the readers who post comments on them. Apple has generated a lot of negative press in the last few days with the lawsuit they have filed against Mac enthusiast site Think Secret. Think Secret posted rumor information on their site over the past few weeks that detailed some announcements that Apple was to make about future products at the upcoming MacWorld Expo. Apple’s suit is an attempt to get Think Secret to identify who leaked the information to the web site and this has generated a lot of discussion all over the blogosphere about First Amendment rights and how they apply to the bully tactics of Apple.
This suit by Apple has the potential to shut down the blogoshpere. If that sounds too knee-jerk or simplistic then perhaps we should be discussing this loud and clear from all corners of the blogosphere. We all know how sacrosanct free speech rights for journalists are treated in the US as they should be. Journalists have confidential sources and it would have a very chilling effect if big companies could sue over a published article and prevent free discussion. Make no mistake about it this is exactly what is happening with the Apple case. Apple has stepped up and broken the cherry for bloggers and enthusiast sites with this law suit and it could potentially shut down a lot of these types of sites. Why?
First of all it is important to call bloggers for what they are and that is journalists. Whether a particular blogger is a good journalist or not might be up for debate but if they are posting news articles then they are journalists in every sense of the word. Even tabloid journalists are true journalists, even if some would argue that point. So if bloggers are journalists and they are automatically protected by the First Amendment how can Apple attempt to get the Think Secret owners to divulge the source of the leaked information? To understand that we should clearly understand what Apple is trying to do with this lawsuit. They are not after monetary gain for damages incurred by this leaked information, Think Secret doesn’t have any to give up and Apple doesn’t need it. No, they are simply trying to coerce the site to name the Apple insiders who provided the information. It is the exact same thing when companies sue a reporter to force them to name whistle blowers for an article the company doesn’t like. And yes, this is First Amendment stuff that should prevail.
The problem (and potential to cripple the blogosphere) lies in the reality of how First Amendment issues are resolved in the US. Journalists work for big publishers (for the most part) who have legal departments and big bucks to help defend their staff journalists when these types of suits arise. They are almost always successful in their defense in these cases but it requires the expertise and funds to do so. Bloggers do not have either of those assets in a fight such as this. Confronted with a similar situation they will take down the offending article, name their sources, and continue on (or shut down completely). If they refuse to do so then the Apples of the corporate world will go after their web host. Think about that for a moment and the ripple effect that can have on many, many blogs and web sites. The exposure comes not just from articles with rumors in them but will eventually extend to comments posted by site visitors. The potential liability comes not just from articles on the site but any material that appears on the blog, even comments. Now you begin to see why the outcome of this Apple suit is so important and even scary.
The exposure for bloggers stems from the fact that bloggers are not just journalists but also the publisher. Bloggers own their sites for the most part and that is why the First Amendment issue will not be quickly resolved in the Apple case. Most suits like this are filed against the journalist and the big publisher steps in for the defense to protect the rest of the publication from potential future problems. You the blogger are your own publisher so who is going to defend you? Unfortunately the reality in these types of cases is that justice is not automatic, no matter how much we’d like to think so. I hope we see a tremendous amount of discussion about this Think Secret problem. It could one day be our own problem.