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Apple versus Think Secret- What it means for Free Press
January 30, 2005
PEN USA is concerned with the case surrounding “Nick de Plume” and his blog Think Secret, now embroiled in a lawsuit with Apple, Inc. Because bloggers are considered by many to be protected by the First Amendment the same as any other journalist, this lawsuit has become a very serious First Amendment issue.
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De Plume, who’s real name is Nick Ciarelli, is a19-year-old Harvard student who has run the site Think Secret for six years, reporting on “Mac Insider News” (as the website says). Ciarelli wrote about the iPod a week before it was released, and the $500 Mac a month before it was released.
Apple, Inc. recently sued Ciarelli for “misappropriation and dissemination of Apple trade secrets.” Ciarelli was raising funds for legal representation when First Amendment attorney Terry Gross, from law firm Gross & Belsky came to his defense without fee.
According to Gross, as a blogger, Ciarelli has every right to publish information leaked to him as long as it is obtained lawfully. As a journalist, he cannot be forced to reveal his confidential sources.
“Think Secret’s reporting is protected by the First Amendment,” said Gross. “The Supreme Court has said that a journalist cannot be held liable for publishing information that the journalist obtained lawfully. Think Secret has not used any improper newsgathering techniques. We will be filing a motion asking the Court to dismiss this case immediately on First Amendment grounds under a California statute which weeds out meritless claims that threaten First Amendment rights.”
Apple says in the lawsuit that free speech guarantees “do not extend to defendants’ unlawful practice of misappropriating trade secrets acquired through deliberate violation of known duties of confidentiality.” Apple’s employees are bound by confidentiality agreements, and Apple states that Ciarelli must have obtained his information from employees breaching their legal obligations.
However, if Ciarelli is to be considered a journalist, he should have the right to protect his sources.
Around the “blog world” reaction to this case is strong. Apple supporters hope Ciarelli loses the suit, although many others think Ciarelli is a journalist doing his job.
“I am disgusted by the morality shown by fanaticals [sic] here. To bully a journalist like Nick Ciarelli who is doing his job well - you have forgotten this is supposed to be a free country - Apple is a disgrace ... Shame on all of you”, writes ‘Farid’ on a blog page discussing this case.
“How Apple treats Nick Ciarelli will determine wheter [sic] I ever buy a Mini Mac. Their arrogance can cost them my sale,” warns another.
PEN USA is concerned about the chilling effect this lawsuit may have, and the First Amendment questions it raises in this world of technology, internet, and blogging.
Techspot.com asks, “who is a journalist in cyberspace? In a world where technology can make anyone a publisher, should every blogger qualify for constitutional protection under the first amendment to the US constitution that guarantees freedom of the press?”
Paul Grabowicz, director at the University of California at Berkeley’s graduate school of journalism, says he worries the Apple suit “could open the door to lots of companies trying to control or stop the flow of information about their corporate products”.
Companies would not have to win in court to intimidate a blogger, he says. Merely filing suit might be enough, since the cost of defending it could bankrupt an individual. However, PEN USA hopes that Terry Gross’ defense of Nick Ciarelli proves that blogs can “fight back” and creates a precedent of First Amendment protection for internet journalists.
Mike Godwin, legal director of Public Knowledge, which backs freedom of information in the digital world, says bloggers are exactly the kind of journalists the constitution was written to protect. “When the first amendment was crafted, it was understood that freedom of the press just as much as freedom of speech belonged to everybody,” he says. Bloggers are the 21st century’s “lowly pamphleteers”.
Eugene Volokh, a free speech expert at UCLA law school, who has his own legal blog, says courts cannot favor traditional media over upstarts. “The rules should be the same for old media and new, professional and amateur.” Volokh says the Californian constitution, which has stronger protection for journalists than the federal version, may well protect Ciarelli. “But it’s not an open and shut case,” he says. That provision of the constitution was written before blogs were around.
PEN USA believes the First Amendment applies to everyone, and believes it would be a heartening thing for freedom of press if Apple loses the lawsuit.