View the trailer
Advertisement

The Hugh Hewitt Show

Listen 24/7 Live: Mon - Fri   6 - 9 AM Eastern
Hugh Hewitt Book ClubHugh Hewitt Book Club
European Voyage Cruise 2017 Advertisement

Bloggers are Journalists (at least in California).

Thursday, June 15, 2006  |  posted by Hugh Hewitt
Advertisement

For your convenience, a long excerpt from the opinion from California’s Sixth Appellate Court in O’Grady v. The Superior Court of Santa Clara County, holding that bloggers and their blogs are covered by California’s Reporter’s Shield Law:

IV. California Reporter’s Shield

A. Introduction

Article I, section 2, subdivision (b), of the California Constitution provides, “A publisher, editor, reporter, or other person connected with or employed upon a {Slip Opn. Page 35} newspaper, magazine, or other periodical publication . . . shall not be adjudged in contempt . . . for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” Evidence Code section 1070, subdivision (a), is to substantially the same effect. Petitioners assert that these provisions, sometimes known as the California reporter’s shield, preclude compelled disclosure of their sources or any other unpublished material in their possession. Apple argues that petitioners may not avail themselves of the shield because (1) they were not engaged in legitimate journalistic activities when they acquired the offending information; and (2) they are not among the classes of persons protected by the statute. fn. 18

Since this controversy turns on questions of statutory interpretation, it is subject to review entirely independent of the trial court’s ruling. (City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202, 1212.) In addition, because it implicates interests in freedom of expression, we review all subsidiary issues, including factual ones, independently in light of the whole record. (People v. Jackson (2005) 128 Cal.App.4th 1009, 1021.) While this standard does not permit an original evaluation of controverted live testimony, it is the equivalent of de novo review where, as here, the trial court decided the case on a paper record fully duplicated, as this one is, before the reviewing court. (Ibid.)

B. “Legitimate” Journalism {Slip Opn. Page 36}

Apple contends that petitioners failed to carry their burden of showing that they are entitled to invoke the shield. (See Rancho Publications, supra, 68 Cal.App.4th at p. 1546, quoting Delaney v. Superior Court (1990) 50 Cal.3d 785, 806, fn. 20 (Delaney), italics omitted [burden is on journalist asserting immunity to ” ‘prove [that] all the requirements of the shield law have been met’ “].) In particular, Apple asserts, petitioners failed to establish that they acquired the information in question while “engag[ing] in legitimate journalistic purposes,” or “exercis[ing] judgmental discretion in such activities.” (Rancho Publications, supra, at p. 1545.) According to Apple, petitioners were engaged not in “legitimate journalism or news,” but only in “trade secret misappropriation” and copyright violations. The trial court seemed to adopt this view, writing that “Mr. O’Grady took the information and turned around and put it on the PowerPage site with essentially no added value.”

We decline the implicit invitation to embroil ourselves in questions of what constitutes “legitimate journalis[m].” The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. 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 memetic marketplace.

Nor does Apple supply any colorable ground for declaring petitioners’ activities not to be legitimate newsgathering and dissemination. Apple asserts that petitioners merely reprinted “verbatim copies” of Apple’s internal information while exercising “no editorial oversight at all.” But this characterization, if accepted, furnishes no basis for denying petitioners the protection of the statute. A reporter who uncovers newsworthy documents cannot rationally be denied the protection of the law because the publication for which he works chooses to publish facsimiles of the documents rather than editorial {Slip Opn. Page 37} summaries. The shield exists not only to protect editors but equally if not more to protect newsgatherers. The primacy Apple would grant to editorial function cannot be justified by any rationale known to us.

Moreover, an absence of editorial judgment cannot be inferred merely from the fact that some source material is published verbatim. It may once have been unusual to reproduce source materials at length, but that fact appears attributable to the constraints of pre-digital publishing technology, which compelled an editor to decide how to use the limited space afforded by a particular publication. This required decisions not only about what information to include but about how to compress source materials to fit. In short, editors were forced to summarize, paraphrase, and rewrite because there was not room on their pages to do otherwise.

Digital communication and storage, especially when coupled with hypertext linking, make it possible to present readers with an unlimited amount of information in connection with a given subject, story, or report. The only real constraint now is time–the publisher’s and the reader’s. From the reader’s perspective, the ideal presentation probably consists of a top-level summary with the ability to “drill down” to source materials through hypertext links. The decision whether to take this approach, or to present original information at the top level of an article, is itself an occasion for editorial judgment. Courts ought not to cling too fiercely to traditional preconceptions, especially when they may operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editors’ own “spin” on a story.

This view is entirely consistent with Rancho Publications, supra, 68 Cal.App.4th 1538, on which Apple relies heavily. The court there held that the publisher of an “advertorial,” i.e., a paid advertisement in the form of editorial content (id. at p. 1541, fn. 1), could not claim the newsgatherer’s shield where there was no evidence that the publisher had done anything more than sell space on its pages to the anonymous originators of an allegedly tortious publication (id. at pp. 1545-1546). The court did not {Slip Opn. Page 38} find a categorical exemption from the privilege, but held instead that the publisher had failed to carry its burden of showing that it had acquired the information sought while engaged in activities related to newsgathering. (Id. at p. 1546.)Apple’s attempt to bring the present case within this holding must fail because there is no basis to conclude, and it does not appear, that petitioners simply opened their Web sites to anonymous tortfeasors, for a fee or otherwise. Rather it appears that petitioners came into possession of, and conveyed to their readers, information those readers would find of considerable interest.

The result in Rancho Publications turns on the fact not that the publisher set out source material verbatim, but that it relinquished any newsgathering function, sold its editorial prerogatives to another, and acted as nothing more than a paid mouthpiece. This record contains no suggestion that petitioners provided such a service. Rather, like any newspaper or magazine, they operated enterprises whose raison d’etre was the dissemination of a particular kind of information to an interested readership. Toward that end, they gathered information by a variety of means including the solicitation of submissions by confidential sources. In no relevant respect do they appear to differ from a reporter or editor for a traditional business-oriented periodical who solicits or otherwise comes into possession of confidential internal information about a company. Disclosure of that information may expose them to liability, but that is not the question immediately of concern; the point here is that such conduct constitutes the gathering and dissemination of news, as that phrase must be understood and applied under our shield law.

C. Covered Persons

Apple contends that petitioners have failed to show that they are among “the types of persons enumerated in the [shield] law.” (Delaney, supra, 50 Cal.3d at p. 805, fn. 17.) The law extends to “[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . .” (Cal. Const., art. I, ? 2, subd. (b).) In seeking to place petitioners outside this description, Apple does not address the actual language of the statute. It simply asserts that (1) the {Slip Opn. Page 39} shield law has been “repeatedly amended to include new forms of media,” but “has never been enlarged to cover posting information on a website”; (2) “[p]ersons who post such information . . . are not members of any professional community governed by ethical and professional standards”; and (3) “if Petitioners’ arguments were accepted, anyone with a computer and Internet access could claim protection under the California Shield and conceal his own misconduct.”

These arguments all rest on the dismissive characterization of petitioners’ conduct as “posting information on a website.” We have already noted the pervasive misuse of the verb “post” by Apple and allied amici. (See pt. II(E), ante.) Here they compound the problem by conflating what occurred here–the open and deliberate publication on a news-oriented Web site of news gathered for that purpose by the site’s operators–with the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board system, or discussion group. Posting of the latter type, where it involves “confidential” or otherwise actionable information, may indeed constitute something other than the publication of news. But posting of the former type appears conceptually indistinguishable from publishing a newspaper, and we see no theoretical basis for treating it differently.

Beyond casting aspersions on the legitimacy of petitioners’ enterprise, Apple offers no cogent reason to conclude that they fall outside the shield law’s protection. Certainly it makes no attempt to ground an argument in the language of the law, which, we reiterate, extends to every “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication.” (Cal. Const., art. I, ? 2, subd. (b).) We can think of no reason to doubt that the operator of a public Web site is a “publisher” for purposes of this language; the primary and core meaning of “to publish” is “[t]o make publicly or generally known; to declare or report openly or publicly; to announce; to tell or noise abroad; also, to propagate, disseminate (a creed or system).” (12 Oxford English Dict. (2d ed. 1989) pp. 784-785.) Of course the term {Slip Opn. Page 40} “publisher” also possesses a somewhat narrower sense: “One whose business is the issuing of books, newspapers, music, engravings, or the like, as the agent of the author or owner; one who undertakes the printing or production of copies of such works, and their distribution to the booksellers and other dealers, or to the public. (Without qualification generally understood to mean a book-publisher or (in the U.S.) also a newspaper proprietor.)” (Id. at p. 785, first italics added.) News-oriented Web sites like petitioners’ are surely “like” a newspaper or magazine for these purposes. Moreover, even if petitioners’ status as “publishers” is debatable, O’Grady and Jade have flatly declared that they are also editors and reporters, and Apple offers no basis to question that characterization.

D. Covered Publications

We come now to the difficult issue, which is whether the phrase “newspaper, magazine, or other periodical publication” (Cal. Const., art. I, ? 2, subd. (b)) applies to Web sites such as petitioners’. Again, Apple offers little if any argument concerning the construction to be given this language, beyond the general notion that it should not extend to petitioners.

As potentially applicable here, the phrase, “newspaper, magazine, or other periodical publication” (Cal. Const., art. I, ? 2, subd. (b); Evid. Code, ? 1070, subd. (a)) is ambiguous. The term “newspaper” presents little difficulty; it has always meant, and continues to mean, a regularly appearing publication printed on large format, inexpensive paper. The term “magazine” is more difficult. Petitioners describe their own sites as “magazines,” and Apple offers no reason to take issue with that characterization. The term “magazine” is now widely used in reference to Web sites or other digital publications of the type produced by petitioners. Thus a draft entry in the Oxford English Dictionary defines “e-zine” as “[a] magazine published in electronic form on a computer network, esp. the Internet. [?] Although most strongly associated with special-interest fanzines only available online, e-zine has been widely applied: to regularly updated {Slip Opn. Page 41} general-interest web sites, to electronic counterparts of print titles (general and specialist), and to subscription-only e-mail newsletters.” fn. 19 Similarly, an online dictionary of library science defines “electronic magazine” as “[a] digital version of a print magazine, or a magazine-like electronic publication with no print counterpart (example: Slate), made available via the Web, e-mail, or other means of Internet access.” fn. 20 And a legal encyclopedia notes that “[a]s with newspapers, the nature of magazines has changed because of the internet. Magazines may be published solely on the internet, or as electronic adjuncts of a print magazine.” (58 Am.Jur.2d (2002) Newspapers, Periodicals, and Press Associations, ? 5, p. 11, fn. omitted.)

Of course, in construing an ambiguous statute, courts will “attempt to ascertain the Legislature’s purpose by taking its words ‘ ” ‘in the sense in which they were understood at the time the statute was enacted.’ ” ‘ ” (Resure, Inc. v. Superior Court (1996) 42 Cal.App.4th 156, 164, quoting People v. Fair (1967) 254 Cal.App.2d 890, 893, italics added; see People v. Williams (2001) 26 Cal.4th 779, 785.) The term “magazine” was added to Evidence Code section 1070 in 1974, as was “or other periodical publication.” (Stats. 1974, ch. 1456, ? 2, p. 3184.) Presumably the Legislature was not prescient enough to have consciously intended to include digital magazines within the sweep of the term. By the same token, however, it cannot have meant to exclude them. It could not advert to them at all because they did not yet exist and the potential for their existence is not likely to have come within its contemplation. {Slip Opn. Page 42}

However, even were we to decide–which we do not–that Web sites such as petitioners’ cannot properly be considered “magazines” for purposes of the shield law, we would still have to address the question whether they fall within the phrase “other periodical publications.” That phrase is obviously intended to extend the reach of the statute beyond the things enumerated (newspapers and magazines). The question is how to delineate the class of unspecified things thus included within the sweep of the law.

The canon of interpretation known as ejusdem generis is supposedly suited to just such questions. Under this doctrine, ” ‘where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.’ ” (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 331, fn. 10; Scally v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, 819.) The doctrine is said to rest on the supposition that ” ‘if the Legislature had intended the general words to be used in their unrestricted sense, it would not have mentioned the particular things or classes of things which would in that event become mere surplusage.’ ” (Ibid.) This may seem a tortuous and uncertain route to an inference about legislative intent, grounded as it seems to be in facile abstractions drawn from dubious semantic generalities. (See 2A Singer, Statutory Construction (6th ed. 2000), ? 47.18, p. 289, fn. omitted [“The doctrine of ejusdem generis calls for more than merely an abstract exercise in semantics and formal logic. It rests on practical insights about everyday language usage . . . . The problem is to determine what unmentioned particulars are sufficiently like those mentioned to be made subject to the act’s provisions by force of the general reference. In most instances there is a wide range of ways in which classes could be defined, any one of which would embrace all of the members in an enumeration. Germaneness to the subject and purpose of the statute, viewed in terms of legislative intent or meaning to others, is the basis for determining which among various semantically correct definitions of the class should be given effect”].) {Slip Opn. Page 43}

The rule of ejusdem generis assumes that the general term chosen by the Legislature conveys a relatively “unrestricted sense.” Sometimes this is so; sometimes it is not. The rule also supposes that the operative characteristics of the enumerated things may be readily discerned from the face of the statute, but that is not necessarily the case. With or without ejusdem generis, the real intent of an inclusive or expansive clause must ordinarily be derived from the statutory context and, if necessary, other permissible indicia of intent. Ejusdem generis, with its emphasis on abstract semantical suppositions, may do more to obscure than disclose the intended scope of the clause.

Here it might be suggested that the shield law only applies to “periodical publications” in print, because that was a common feature of newspapers and magazines at the time the law was enacted. Yet there is no apparent link between the core purpose of the law, which is to shield the gathering of news for dissemination to the public, and the characteristic of appearing in traditional print, on traditional paper. Indeed, the shield law manifests a clear intention not to limit its reach to print publications by also protecting “person[s] connected with or employed by a radio or television station.” (Cal. Const., art. I, ? 2, subd. (b); Evid. Code, ? 1070, subd. (b).) Apple alludes to the absence of any similar explicit extension to digital publications such as petitioners’, but this consideration is far from compelling. No one would say that the evening news on television, or an hourly news report on radio, is a “newspaper, magazine, or other periodical publication.” The broadcast media represent a radical departure from the preexisting paradigm for news sources. Because no one thought of those media as “publications,” an explicit extension was necessary to ensure their inclusion. Petitioners’ Web sites are not only “publications” under various sources we have noted but also bear far closer resemblance to traditional print media than do television and radio. They consist primary of text, sometimes accompanied by pictures, and perhaps occasionally by multimedia content. Radio consists entirely of sounds, and television consists almost {Slip Opn. Page 44} entirely of sounds and pictures. While television could be used to deliver text, it almost never is.

For these reasons the explicit inclusion of television and radio in the shield law does not imply an exclusion of digital media such as petitioners’. As we have noted, the electorate cannot have intended to exclude those media because they did not exist when the law was enacted. The surest guide to the applicability of the law is thus its purpose and history.

As we have noted, the words “magazine, or other periodical publication” were added to the shield law in 1974. (Stats. 1974, ch. 1323, ? 2, p. 2877; Stats. 1974, ch. 1456, ? 2, p. 3184.) The purpose of the amendment, obviously, was to extend the statute’s protections to persons gathering news for these additional publications. (Sen. Com. on Judiciary, Bill Digest of Assem. Bill No. 3148 (1973-1974 Reg. Sess.) hrg. date Apr. 16, 1974, p. 1 [“This bill broadens the scope of the privilege to include individuals connected with a magazine or other periodical”].) A senate committee report explained the bill and its potential effects as follows (see In re J.W. (2002) 29 Cal.4th 200, 211 [“To determine the purpose of legislation, a court may consult contemporary legislative committee analyses of that legislation, which are subject to judicial notice”]): “One effect of this bill is to clear up one ambiguity in existing law and create another. The word, ‘newspaper’ is not defined in the existing statute. As a result it is not clear whether the law covers periodic newsletters and other such publications. Under this bill these kinds of publications would clearly be covered. If they are technically not newspapers, they are at least periodical publications. On the other hand, it is not clear how far the words ‘magazine, or other periodical publication’ will stretch. For instance, would it cover legislators’ occasional newsletters?” (Id. at p. 1.) {Slip Opn. Page 45}

It is “technically” debatable whether petitioners’ Web sites constitute “periodical publication[s]” within the contemplation of the statute. fn. 21 In its narrowest sense the term “publication” has tended to carry the connotation of printed matter. But petitioners’ Web sites are highly analogous to printed publications: they consist predominantly of text on “pages” which the reader “opens,” reads at his own pace, and “closes.” The chief distinction between these pages and those of traditional print media is that the reader generally gains access to their content not by taking physical possession of sheets of {Slip Opn. Page 46} paper bearing ink, but by retrieving electromagnetic impulses that cause images to appear on an electronic display. fn. 22 Thus, even if there were evidence that the Legislature intended the term “publication” in this narrower sense, it would be far from clear that it does not apply to petitioners’ Web sites. Thus the online library science dictionary to which we have previously adverted defines “electronic publication” to include Web sites. fn. 23 {Slip Opn. Page 47}

Ambiguities also attend the term “periodical” as a modifier of “publication” in the present context. In general usage the adjective “periodical” is roughly synonymous with “recurring” or “repeating.” Although it sometimes connotes a degree of regularity, it may also be applied where the recurrence lacks an inflexible frequency. Thus a leading dictionary defines “periodical” as “[r]ecurring after more or less regular periods of time . . . .” (11 Oxford English Dict., supra, p. 560, italics added.)

The term “periodical” is also commonly understood to apply to recurring publications, most notably magazines. (See 11 Oxford English Dict., supra, p. 560.) In the world of publishing, “periodical” refers specifically to a type of “serial” distinguished mainly by its appearance at regular intervals. (See Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 864 [“published with a fixed interval between the issues or numbers”]; American Heritage College Dict. (3d ed. 1997), p. 1016 [“[p]ublished at regular intervals of more than one day”].) fn. 24

It does not appear that petitioners’ Web sites are published in distinct issues at regular, stated, or fixed intervals. Rather, individual articles are added as and when they become ready for publication, so that the home page at a given time may include links to {Slip Opn. Page 48} articles posted over the preceding several days. This kind of constant updating is characteristic of online publications but is difficult to characterize as publication at “regular intervals.” That fact, however, has not kept an online dictionary of library science from referring to such a Web site as a “periodical.” fn. 25

Moreover, many familiar print publications universally viewed as “periodicals” (or “periodical publications”) do not appear with absolute regularity. The New Yorker Magazine is considered a periodical and a magazine (a subset of periodicals) even though it publishes 47, not 52, issues a year. (The New Yorker (March 6, 2006), p. 93 [“published weekly (except for five combined issues . . .)”].) Similarly, the New York Review of Books is “[p]ublished 20 times a year, biweekly except in January, August, and September, when monthly.” (New York Review of Books (Feb. 23, 2006), p. 3.)

Given the numerous ambiguities presented by “periodical publication” in this context, its applicability must ultimately depend on the purpose of the statute. (See McGarity v. Department of Transportation (1992) 8 Cal.App.4th 677, 682-683 [purpose of statute limiting cross-examination of experts warranted broad construction of “similar publication” and justified its application to crash impact study although it “was apparently not published for mass consumption”].) It seems likely that the Legislature intended the phrase “periodical publication” to include all ongoing, recurring news publications while excluding non-recurring publications such as books, pamphlets, flyers, and monographs. The Legislature was aware that the inclusion of this language could extend the statute’s protections to something as occasional as a legislator’s newsletter. (See Sen. Com. on Judiciary, Bill Digest of Assem. Bill No. 3148 (1973-1974 Reg. Sess.) hrg. date Apr. 16, 1974, p. 1.) If the Legislature was prepared to sweep that broadly, it {Slip Opn. Page 49} must have intended that the statute protect publications like petitioners’, which differ from traditional periodicals only in their tendency, which flows directly from the advanced technology they employ, to continuously update their content. fn. 26

We conclude that petitioners are entitled to the protection of the shield law, which precludes punishing as contempt a refusal by them to disclose unpublished information.

Advertise With UsAdvertisement
Advertisement
Advertisement
Sierra Pacific Mortgage Advertisement
Hear what Hugh has to say about
Health Markets
Advertisement
Advertisement
Back to Top