Press Freedom for Bloggers
Eric Conner, Zach Galant, and Jeremy Keeshin
John Locke was an English physician and philosopher who is widely regarded as one of the most influential Englightenment thinkers. He centered his political theory on the idea of social contract theory. He believed that human nature is characterized by reason and tolerance, but that it was in man's nature to be selfish. Because of this selfishness, Locke believed it necessary to establish government under which individuals surrender some rights in return for the protection of a set of natural rights.
Locke's philosophy would have profound influence on the U.S. Constitution, which laid the foundations for the freedom of the press with the First Amendment. According to Locke, all people in a natural state are created equal and everyone has the right to defend his own "Life, health, Liberty, or Possessions," the basis for the Constitution's "Life, liberty, and the pursuit of happiness" clause. Locke believed that this right though was not enough to guarantee the mediation of disputes in a civil way so individuals established government to set the boundaries of these rights and to resolve conflicts.
John Milton was an English author and polemicist most famous for writing Paradise Lost
. In his time, the English government maintained a law that all authors were required to receive a publishing license for a work before it went to press. In 1644, he wrote a pamphlet parodying this government licensing in England, from which the above quote is taken.
Milton developed the idea of an open marketplace of ideas and he believed it of utmost importance that all men have access to the ideas of their fellow man so that the best ideas could win out. He believed in the individual responsibility and ability of men to reason through ideas and was therefore deeply concerned with the seditious libel laws in England at this time. During this period, it was a crime to criticize the government in any way, even if the criticism were true. Milton was very against this law as he saw it limiting to the open market place of ideas.
John Stuart Mill
John Stuart Mill was a British philosopher who lived in the early nineteenth century. He was a proponent of utilitarianism and used it as a framework to argue for freedom of speech. The individual, he argued, has the right to express himself as long as he does not harm other individuals in the process. For Mill the good society was the one in which the largest number of people enjoy the greatest amount of happiness.
It was therefore beneficial to extend the liberty of expression to as many individuals as possible. His condemnation of censorship was absolute:
I choose, by preference the cases which are least favourable to me - In which the argument against freedom of opinion, both on truth and that of utility, is considered the strongest. Let the opinions impugned be the belief of God and in a future state, or any of the commonly received doctrines of morality... But I must be permitted to observe that it is not the feeling sure of a doctrine (be it what it may) which I call an assumption of infallibility. It is the undertaking to decide that question for others, without allowing them to hear what can be said on the contrary side...
While his philosophy did not greatly influence the U.S. Constitution, he wrote much on the Bill of Rights, believed strongly in many of its tenets, and his philosophy influenced the era.
US Legal Framework for Freedom of Press
The U.S. Constitution mandated Freedom of the Press, but did not lay out how this right would be protected. Its first test came with the Alien and Sedition Acts in 1798 one of whose establishments was to make it a crime to publish "false, scandalous, and malicious writing" against the government or its officials. Eventually these acts were ruled unconstitutional and Thomas Jefferson pardoned many of the accused offenders, making it a principle to pardon all those who had been tried under the act without looking into more details of the case.
In 1917, Congress again limited speech with the Espionage Act of 1917, which aims to protect military operations during wartime by making it a crime to publish their details. The conditions of it's applicability have been modified several times since its inception with the most recent version subject to an "imminent lawless action" test in which free speech is restricted if the speech intends to break the law in a way that is both imminent and likely.
In 1931 the court case Lovell v. City of Griffin established the definition of press as "every sort of publication which affords a vehicle of information and opinion." It also established the freedom to circulate a publication. In the case, a woman was fined for distributing religious tracts without a permit, but she held that her free speech rights guaranteed her the privilege to do so.
The case New York Times Co. v. Sullivan (1964) established the actual malice standard in which the plaintiff in a libel case must prove that the publisher of the statement knew it to be false before publication. In the case, the New York Times ran an ad defending Martin Luther King Jr. in which certain description of the Alabama police force were inaccurate and the case was tried under libel law.
Today, freedom of the press in the United States is generally accepted to mean that the U.S. government cannot interfere with the distribution of information or opinions as long as neither defamation law nor copyright law has been violated by the publisher.
The Pentagon Papers refer to a 1,000 page secret government history of the Vietnam War which was released in 1971 by Daniel Ellsberg, a high level military analyst. The documents were subsequently published in The New York Times, as well as other major newspapers such as The Washington Post.
The Nixon administration filed an injunction against the Times to stop publication, and this led to the Supreme Court case New York Time Co. v. United States. The court ruled for the side of the newspapers saying that the government could not impose prior restraint on the publication of these documents.
Ellsberg said he released the documents to stop the deception he felt was coming from the administration. The Pentagon Papers told a different story about the Vietnam War than had been told through public media, and also showed hidden intentions of past administrations.
WikiLeaks is a website that publishes confidential and often controversial information. It is considered to be a whistleblower organization which attempts to alert the public to state secrets and political and social injustices.
WikiLeaks became a major news topic when in November of 2010 they released United States secrete diplomatic cables. The cables between US embassies were published on the WikiLeaks website as well as in major papers such as The New York Times, The Guardian, and Le Monde. WikiLeaks had earlier in the year released secret documents about the War in Afghanistan as well as the Iraq War.
The contents of the cables contains comments about international relations, the War on Terror, the Middle East, and nuclear disarmament, as well as many other topics.
The response to the release of these cables was very divided, as some have called WikiLeaks editor-in-chief Julian Assange a terrorist, and others have lauded him as a hero of free speech.
A major issue in the topic of freedom of the press for bloggers is the ability to publish. All you need to publish a blog is an internet connection, but in the WikiLeaks case they were denied access to the net. After the leaks, Amazon dropped WikiLeaks from its hosting, and later PayPal, MasterCard, and Visa also cut off their services to WikiLeaks. Blogging has generally been a platform where there is little resistance and friction to publishing. However, the WikiLeaks cables release is one of the first instances where the government took a very active role in trying to shut down all methods of web access and payment to the organization.
Gizmodo Found iPhone
In 2010, an Apple engineer field testing a new iPhone 4 accidentally lost it in a bar in Redwood City. The phone was picked up by a random stranger who thought it was his friend's phone, and it was disguised as an iPhone 3G. After bringing it home, he realized that the phone got "bricked," which means it was remotely disabled by the owner of the phone.
Also, he realized that the phone wasn't a 3G, but a different model he had never seen before, and he called Apple to return the phone. He never made contact with anyone at Apple, so he was unable to return the phone. He ended up selling the phone for $5000 to Gizmodo, a popular technology blog.
Gizmodo could not verify the origin of the phone, so they did not know to whom it belonged. Nevertheless, they posted the story and the details of the device on their blog. Gizmodo considered the phone to be lost and then found, rather than stolen, but they received a call from Apple about returning the stolen device. Apple officially requested the device stolen, verifying that the phone was not a fake, but actually an Apple product.
Both Gizmodo and the random person who found the phone had ethical decisions to make about the found device. If Gizmodo considered it stolen, should they have purchased the device? Should they have returned it? Should the stranger have returned it? He actually tried to and failed because Apple's bureaucratic structure wouldn't allow him to talk to who he needed to.
The main ethical consideration is: If you find some device or information, do you ever have the right or sometimes even the duty to publish it?
Apple v. Does
In 2004, several blogs including AppleInsider and PowerPage published rumors about new Apple products including a "headless" iMac and updates to iWork. When the rumors came true Apple took legal action against the blogs and bloggers who published the rumors.
Apple claimed that a source leaked information to the blogs and issued subpoenas to find out the identity of the source(s). The main issue with Apple's subpoena request is that the First Amendment of the United States Constitution guarantees journalists the right to keep their sources confidential.
At first, Judge James P. Kleinberg declined to grant a protective order to the blogs in March 2005. He claimed that the leaked information was stolen property from Apple, since the pictures posted on the blogs were exact copies taken from a set of confidential slides owned by Apple. Because the slides were stolen, he claimed that overruled the journalists' privilege guaranteed under the First Amendment.
After the ruling, the blogs started a petition appealing the decision and received support from many news organizations and media associations. In May 2006, the California Court of Appeals unanimously granted the petition.
"Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple's secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. SS 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter's shield (Cal. Const., art. I, S 2, subd (b); Evid. Code, S 1070); and (3) discovery of petitioners' sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order."
Additionally Think Secret posted the same rumors, and Apple sued them for publishing trade secrets. This was a separate suit because Think Secret had not done any original reporting, so Apple just sued them directly rather than requesting a subpoena for their sources.
The lawsuit settled in December 2007. No sources were revealed, but Think Secret agreed to stop publishing. The site was officially shut down in February 2008.
Many critics have argued that Apple should not have sued because of the negative repercussions. Apple achieves so much of their success by having a strong community following, including the very bloggers they sued. By suing, they risked losing and alienating prominent members of their fan-base and staining the company's reputation.
What is a blog?
A blog, short for "weblog," is a website maintained by an individual or group of individuals that is made up of a series of posts. Someone who posts on a blog is called a blogger, and the verb form "to blog" means to post on a blog.
Posts can consist of text, photos, links, and more. Many individuals' blogs act like online diaries for the individual, and most group blogs focus on one subject. Bloggers are often unpaid and do not post with a regular schedule, but many blogs pay writers and have regular posts--often many times a day.
Recently, Twitter has popularized "microblogging," which is a form of blogging that restricts bloggers to short messages, often only 140 characters long.
Issues with Blogs
Traditional journalists have questioned the journalistic integrity of bloggers. Often bloggers are anonymous, so they do not feel the same responsibility for their work as professional journalists do.
Bloggers' objectivity and bias has also been questioned. Barack Obama said, "if the direction of the news is all blogosphere, all opinions, with no serious fact-checking, no serious attempts to put stories in context, that what you will end up getting is people shouting at each other across the void but not a lot of mutual understanding."
Tim O'Reilly, founder of O'Reilly Media, proposed The Blogger's Code of Conduct to maintain civility and integrity on blogs amongst bloggers and commenters. The main ideas are listed below. Unfortunately, there is no way to enforce these rules, so blogs that do not choose to follow them can still cause issues.
- Take responsibility not just for your own words, but for the comments you allow on your blog.
- Label your tolerance level for abusive comments.
- Consider eliminating anonymous comments.
- Ignore the trolls.
- Take the conversation offline, and talk directly, or find an intermediary who can do so.
- If you know someone who is behaving badly, tell them so.
- Don't say anything online that you wouldn't say in person.
Positive Impact of Blogging
Blogs greatly increase the potential dissemination of information. Rather than the top-down approach of traditional media, blogs work from the ground up. Blogs can quickly cover events in real time that traditional media can't cover as quickly or effectively. Also, blogs can cover a wider range of topics with a broader range of perspectives.
Recently, citizens of Iran, Egypt, and Libya have used blogging and microblogging to organize revolts against the dictatorial regimes in their respective countries. This was made possible because blogging gives common people the ability to broadcast anything while subverting traditional forms of censorship.
Thomas Paine was one of the founding fathers of the United States and the author of a pamphlet called Common Sense. He wrote the anti-British pamphlet in 1776 and distributed it throughout the British colonies in America.
The pamphlet contributed to the idea of revolution and democracy. Thomas Paine can be compared to a blogger because he anonymously published his opinions differently than a traditional journalist.
Paine was a precursor to the revolutionaries in Iran, Libya, and Egypt who used blogging to spur a revolution.
"A Letter: Apple Wants Its Secret IPhone Back." Gizmodo, the Gadget Guide. Web. 26 May 2011. <http://gizmodo.com/5520479/a-letter-apple-wants-its-secret-iphone-back>.
Apple Jr., R.W. "Pentagon Papers." The New York Times 23 June 1996. The New York Times. The New York Times. Web. 25 May 2011. <http://topics.nytimes.com/top/reference/timestopics/subjects/p/pentagon_papers/index.html>.
"Apple v. Does." Wikipedia, the Free Encyclopedia. Web. 26 May 2011. <http://en.wikipedia.org/wiki/Apple_v._Does>.
"Apple v. Does." Electronic Frontier Foundation. Web. 26 May 2011. <https://www.eff.org/cases/apple-v-does>.
Daly, Christopher B. Are Bloggers Journalists? Let's Ask Thomas Jefferson. April 7, 2005. <http://www.bu.edu/cdaly/whoisajournalist.html>.
Gibson, William. "Florida Senators Condemn Cuban Harassment of Bloggers." SunSentinel.com. 10 November 2009. <http://weblogs.sun-sentinel.com/news/politics/dcblog/2009/11/florida_senators_condemn_cuban.htm>.
"How Apple Lost the Next IPhone." Gizmodo, the Gadget Guide. Web. 26 May 2011. <http://gizmodo.com/5520438/how-apple-lost-the-next-iphone>.
Lettice, John. "Cops Raid Gizmodo editor in pursuit of iPhone 4G felony." The Register. 26 April 2010. <http://www.theregister.co.uk/2010/04/26/gizmodo_iphone4_raid/>.
McNichol, Tom. "Think Belligerent." Editorial. Wired Magazine May 2005. Wired. Web. 26 May 2011. <http://www.wired.com/wired/archive/13.05/apple.html>.
Mcqueen, M.p. "Bloggers, Beware: What You Write Can Get You Sued - WSJ.com." Business News & Financial News - The Wall Street Journal - Wsj.com. Web. 26 May 2011. <http://online.wsj.com/article/SB124287328648142113.html>.
Opsahl, Kurt. "Bloggers As Journalists: Why We Fight Apple's Subpoenas." Electronic Frontier Foundation. Web. 26 May 2011. <http://www.eff.org/deeplinks/2005/01/bloggers-journalists-why-we-fight-apple-s-subpoenas>.
"Police Seize Jason Chen's Computers." Gizmodo, the Gadget Guide. Web. 26 May 2011. <http://gizmodo.com/5524843/police-seize-jason-chens-computers>.
"Why Apple Couldn't Get the Lost IPhone Back." Gizmodo, the Gadget Guide. Web. 26 May 2011. <http://gizmodo.com/5520729/why-apple-couldnt-get-the-lost-iphone-back>.
"WikiLeaks." Wikipedia, the Free Encyclopedia. Web. 26 May 2011. <http://en.wikipedia.org/wiki/WikiLeaks>.
Woolner, Ann. "WikiLeaks Secret Records Dump Stays in Legal Clear." Bloomberg. 27 July 2010. Web. 26 May 2011. <http://www.bloomberg.com/news/2010-07-28/wikileaks-secret-records-dump-stays-in-legal-clear-ann-woolner.html>.