Friday, March 04, 2005

Freedom To Blog?

In a story with wide-reaching implications in the Blogosphere, a judge has denied an on-line publisher the right to journalism shield laws:

"In a case with implications for the freedom to blog, a San Jose judge tentatively ruled Thursday that Apple Computer can force three online publishers to surrender the names of confidential sources who disclosed information about the company's upcoming products.

Santa Clara County Superior Court Judge James Kleinberg refused to extend to the Web sites a protection that shields journalists from revealing the names of unidentified sources or turning over unpublished material.

Kleinberg offered no explanation for the preliminary ruling. He will hear arguments today from Apple's attorneys and the Electronic Frontier Foundation, a San Francisco digital rights group representing two of the three Web sites Apple subpoenaed -- Apple Insider and PowerPage.

The case raises issues about whether those who write for online publications are entitled to the same constitutional protections as their counterparts in more traditional print and broadcast news organizations.

Apple sought subpoenas in December against two online news sites that focus exclusively on its products: PowerPage (www.power page.org) and Apple Insider (www.appleinsider .com). The company filed a separate suit against Think Secret (www.thinksecret .com on Jan. 4.

Apple's argument Apple maintains that disclosures about an unreleased product, code-named "Asteroid," constituted a trade secret violation. The company asked the court to force the Web sites to identify the source of the leaks.

In its court filings, Apple argued that neither the free speech protections of the United States Constitution nor the California Shield Law, which protects journalists from revealing their sources, applies to the Web sites. The company said such protections apply only to "legitimate members of the press."

Subpoena fight The court earlier authorized Apple to serve subpoenas on the Web sites, seeking all documents related to Asteroid and information about anyone with knowledge of the postings about the product.

The Electronic Frontier Foundation fought the subpoenas, arguing the online publishers, like their print and broadcast counterparts, frequently rely on confidential sources to report on issues in the public interest.

"Compelled disclosure of journalists' sources would have a devastating effect on the free flow of information," said Kurt Opsahl, an EFF attorney. "It's the lifeblood of a functioning democracy. Therefore the courts have to understand the vital connection between the confidentiality of sources and the freedom of the press."

An Apple spokesman declined to comment on the case.

Adding support Thomas Goldstein, a former dean of the Columbia University Graduate School of Journalism who worked as a reporter for the New York Times, filed a brief in support of the Web sites.

"Just because Apple does not want these publications to report on its activities does not mean that they are not news publications," Goldstein wrote.

This decision is the first one on a case destined to be decided by the Unites States Supreme Court.

Over at Engadget they are asking for Apple to withdraw the suit.

Update: Read Roger Simon's take on this situation here.

And Gizmodo's F**kem All here.

UpDate #2: Democracy Project has a great piece on the role of Senator McCain and his former staff and their influence in the FEC Commissioner Bradley Smith affair.
But, what no one has discussed is McCain's relationship with other members of the FEC and why he pushed the nomination of Ellen Weintraub (whom he later criticised during the last election cycle) for a recess appointment.

Here is the explanation:

"The Arizona Republican has placed a hold on all nominations pending before the Senate, including 17 judicial nominees. And the "maverick" senator is vowing to prevent any action on their confirmations until the president assures him that Ellen Weintraub will receive a recess appointment to a seat on the Federal Elections Commission (FEC) during Congress’ upcoming August break.

Who in the world is Ellen Weintraub?

Weintraub is the Democrat choice to fill a lame-duck FEC seat, currently occupied by Democrat Commissioner Karl Sandstrom. Sandstrom recently voted with his three GOP colleagues to approve new regulations by which soft-money provisions of the Bipartisan Campaign Finance Reform Act (BCRA)* will be enforced. McCain is irate over the recently passed FEC regulations, as he and other principle BCRA sponsors — Senator Russ Feingold (D-WI) and Representatives Christopher Shays (R-CT) and Marty Meehan (D-MA) — claim the new rules were "intentionally and arrogantly" written to create loopholes in the law.

This much we know from The New York Times and other major media, which are exempt from McCain’s "reform," and have shamelessly reported on his latest posturing in a favorable light.

What’s not being widely reported is that Weintraub, a staunch supporter of BCRA, is the wife of Senator Russ Feingold’s legislative director, Bill Dauster. Her speedy ascension to the FEC post would no doubt serve McCain and Co. well, as the commission prepares to draft the next set of BCRA regulations in the fall. McCain will stop at nothing to ensure that happens, even if it means holding up the vital work of the Senate.

Also of note is that Weintraub, a former staffer for the House Ethics Committee, is currently an election lawyer in the Washington D.C. office of Perkins Coie LLP. The firm’s political law group, headed by Democrat operative Bob Bauer, represents numerous House and Senate Democratic campaign and political action committees, including that of Senate Majority Leader Tom Daschle (D-SD). According to United Press International, Perkins Coie is believed to be the "legal mastermind" behind several frivolous ethics complaints and unfounded fundraising charges against former House Speaker Newt Gingrich (R-GA) and other Republican members of Congress and organizations.

In 2000, Perkins Coie represented the Democratic Congressional Campaign Committee (DCCC) in its Racketeer Influenced Corrupt Organization (RICO) suit against House Majority Whip Tom DeLay (R-TX) and three tax exempt organizations. Perkins Coie and the DCCC charged that DeLay was "extorting" funds from political donors and laundering the money through organizations close to him. The baseless complaint was thrown out of court and the DCCC withdrew its charges almost a year later.

Is Weintraub, a product of Bauer’s tutelage, capable of serving on the FEC in an impartial role? We won’t know until she goes through the traditional process of being vetted and confirmed by the full Senate.

Majority Leader Daschle’s suggestion that Ellen Weintraub be nominated to the FEC post was sent to the president eight weeks ago. According to the White House, she is still undergoing the standard background checks — a process that Daschle himself admits is lengthy and time-consuming.

In the meantime, McCain’s desire to influence the FEC as it writes the regulations governing BCRA should not delay Senate action on the 17 nominees waiting to fill longstanding vacancies of the federal judiciary and more than 60 other nominees lingering on the Senate calendar.

The Center has written extensively about the obstructionism that has plagued the judicial confirmation process. An agreement announced this week between the White House and leaders of both parties in the Senate to expedite the process could be good news for the many nominees being held in limbo. McCain’s petulance is now the only obstacle standing in their way.

*The Bipartisan Campaign Finance Reform Act represents one of the most egregious assaults on the First Amendment ever ventured by the United States Congress. The Center for Individual Freedom has joined Senator Mitch McConnell (R-KY) and more than 80 other members of Congress, organizations and individuals from across the political spectrum in challenging the constitutionality of BCRA in court."

So, what does Ellen Weintraub have to say about Bradley Smith's statements?

Here is another take over at Captain's Quarters.

Update #3

The good Professor has his say:

First Amendment's Foes Strike Back

The chief enemies of free speech - otherwise known as the proponents of campaign finance "reform" - clearly were spooked by the blog storm triggered by FEC Chairman Brad Smith's C-Net interview. Democracy Project has the details. Basically, it's another smear campaign by the McCainites against Brad Smith, who may be the most frequently lied about bureaucrat in the federal government.

Friends of freedom clearly need to remember this incident if and when John McCain (or Russ Feingold, for that matter) runs again for President. And we need to roast President George Bush one more time for spinelessly signing the excrescence that is McCain-Feingold.

Update #4

La Shawn Barber has an outstanding piece on the whole affair:

"What should concern bloggers of all stripes is that despite an exemption, the Internet may become subject to the campaign finance reform law. A widely linked article by Declan McCullagh lays it all out. He interviewed Bradley Smith, one of six FEC commissioners. McCullugh writes:

In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. “The commission’s exclusion of Internet communications from the coordinated communications regulation severely undermines” the campaign finance law’s purposes, Kollar-Kotelly wrote.

Smith and the other two Republican commissioners wanted to appeal the Internet-related sections. But because they couldn’t get the three Democrats to go along with them, what Smith describes as a “bizarre” regulatory process now is under way.

The law as applied to bloggers would mean that our linking to a particular candidate’s web site could be seen as a “contribution” to the campaign. As ridiculous as it sounds, we could be charged with a crime if found in violation.

This is why I am anti-big government, people. Forget the perks, like skin color set-aside programs, subsidies and the like. Government continues to grow more oppressive every day, and its perceived power to regulate every aspect of our lives knows no bounds!

Several bloggers are all over this, including Captain’s Quarters (who also does a great job explaining how the law would affect bloggers — also see his open letter to the Senate), Michelle Malkin (round-up), Devil’s Advocate, Pirates!, Power Line, Mark Tapscott

If you blogged about this, trackback to this post and I’ll include your link in my round-up."

Thanks La Shawn!

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