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March 08, 2005
Press Shield Laws Defend Democratic Culture in Trade Secret Cases
Yesterday, Prof. Susan Crawford wrote about the ongoing controversy over the subpoenas Apple issued to various online publications and whether or not these publications would be covered by California's press shield law (Apple and Bloggers). I agree with Crawford that there is no principled distinction between "bloggers" and "journalists" (a position I've held for quite some time). However, I must respectfully disagree with her second point that we really shouldn't care about those who publish trade secrets:
But as long as we're being principled, breaches of trade secret confidentiality are not the stuff of democratic transparency. It's important to protect sources who are leaking government information -- that's democracy at work. It's not as important to protect sources who are allegedly breaking promises to keep information confidential.
In my view, the reporter's shield (like anti-SLAPP motions in California) should be reserved for information/sources that actually have something to do with the democratic process. Let's allow judges to carry out this weighing of the importance of the reporter's privilege. An absolute rule ("never force reporters to divulge sources") will weaken that privilege when we need it the most -- when reporters are reporting on government corruption.
Although Crawford does point out a danger, that the privilege would be weakened by extending it to non-corruption cases, I think there is a greater danger in not holding to a broad definition of the purpose of the First Amendment.
Crawford's distinction between information that is important to the democratic process and information that is not reminds me too much of the Meiklejohnian or republican conception of First Amendment jurisprudence. Meiklejohn emphasized that the purpose of the First Amendment was to protect the democratic process and, thus, political speech and high culture were to receive more First Amendment protection than non-political speech and low culture. I disagree with this view of the First Amendment and adhere more towards Jack Balkin's view that the purpose of the First Amendment is to protect a democratic culture, which incorporates a wider view of what is protected, such as popular culture and non-political speech.
From this view, I believe that publishing information about trade secrets can be very important to defending democratic culture. Imagine someone who publishes information about DRM, for example. The connection is very clear there. But even in the current Apple case the issue is very clear. Apple has a tremendous impact on our common culture; commenting upon and participating in the construction of that culture is an important democratic value. Perhaps we should reconsider our trade secret laws.
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