Apple Computer’s attempt to subpoena web site owners to discover who has been leaking confidential company information to them took a worrying twist for bloggers this week when a California judge ruled that the web sites do not qualify for protection under a law that protects journalists from being charged with contempt of court.

According to the Associated Press, Santa Clara County Superior Court Judge James Kleinberg “offered no explaination” for his ruling that the publishers of Apple Insider and PowerPage are not protected by California’s so-called shield law, a section of the state constitution that protects journalists from being held in contempt of court for refusing to reveal confidential sources.

Apple had argumed that the shield law only applies to “legitimate members of the press”.

Grassroots journalist Dan Gillmor, formerly of the San Jose Mercury News, is suitably perplexed by Kleinberg’s ruling:

By his bizarre and dangerous standard, I apparently stopped being a journalist the day I left my newspaper job after a quarter-century of writing for newspapers. (Note: At the request of lawyers for the sites, I’ve filed declarations — here (104k PDF) and here (1MB PDF) — saying that in my opinion these sites are performing a journalistic function. I haven’t been paid to do so.)

Defining “journalism“ for the purposes of extending special protections is dangerous business — not because of who it protects, but, as we see here, because of who it excludes from that protection. Unfortunatly, the California shield law — which was also invoked about thirty times by Martin Bashir in his testimony at the Michael Jackson trial this week — does just that:

The Shield Law protects a “publisher, editor, reporter, or other person connected with or employed unpon a newspaper, magazine, or other periodical publication, or by a press association or wire service” and a “radio or television news reporter or other person connected with or employed by a radio or television station.” The Shield Law also likely applies to stringers, freelancers, and perhaps authors.

The question of how the law of free expression applies to bloggers and other new forms of media not anticipated by such laws has been bubbling for some time, and it’s no great surprise that a case like has emerged. In December, blogger and First Amendment expert Eugene Volokh penned a New York Times op-ed anticipating this. Volokh argued:

The First Amendment can’t give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.

Quite right. Press freedom — and legislation designed to protect it — is a right of all citizens, and not just for the institutionalised or “legitimate” press. Free expression guarantees apply equally to family photo album web sites, blogs, and major newspapers.

The philosophy that underpins the free expression guarantees US and California constitutions (and the ECHR here in Europe) predates the institutions of modern journalism. Historically, the notion of a right to free expression was conceived to protect small scale publishers such as political pampheteers. Blogs are today’s equivalent.

The attempt to narrowly define “journalism” in order to restrict free expression guarantees to mainstream commercial journalism is what makes Apple v. Does so worrying. I’m no lawyer, but perhaps bloggers need to start arguing about these definitions on equal protection grounds.

Update: The Electronic Frontier Foundation, which is representing the web sites, has a collection of documents pertaining to the cases on its web site. Last month, the Christian Science Monitor produced a good summary of the debate on this issue.