Trade Secrets vs. the First Amendment - Denied
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It wasn’t just that he denied the motion; it was the way he denied the motion. You can find a PDF of his order here (http://www.eff.org/Censorship/Apple_v_Does/
20050311_apple_decision.pdf); it runs to 13 pages. In answer to the bloggers calling on the protections they are entitled to as journalists, Apple insisted that “the acquisition and dissemination of the alleged trade secrets are violations of California law, neither the federal privilege nor the California shield law bar the subpoena,” and that therefore the bloggers seeking the motion “have no right to anonymous free speech.” While it is true that we hold free speech in extremely high regard here in the United States, the judge pointed out “the undisputed right to protect intellectual property as expressed in California civil and criminal law.” You can probably see where this is going.
Looking at the statutes the judge quotes, Apple is apparently trying to argue that the bloggers knew or had reason to know that the information they acquired was a trade secret, and that they acquired it from someone who had a duty to “maintain its secrecy or limit its use.” Having cited these statutes, Judge Kleinberg says that the interest of discovering who revealed the trade secret “may, in the proper civil case, outweigh First Amendment rights.” There it is in black and white: in certain cases, according to this judge, state statutes may carry more force than one of our nation’s founding documents.
But it is the next two sentences that are really devastating. According to the judge, “the United States and California Supreme Courts have underscored that trade secret laws apply to everyone regardless of their status, title or chosen profession. The California Legislature has not carved out any exception to these statutes for journalists, bloggers, or anyone else.” In other words, the judge ruled that the bloggers were not entitled to the traditional protections of journalists working as members of a free press – not because of their status as bloggers rather than traditional journalists, but because, in this particular case, no one is entitled to that protection. Even The New York Times would not be safe.
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