On Friday, Judge James Kleinberg delayed a final ruling on whether three Web sites can be classified as legitimate journalistic outlets and can claim protection under reporter shield laws, thereby avoiding subpoenas from Cupertino, Calif.-based Apple Computer Inc.
The company recently filed a complaint against the sites—PowerPage.org, AppleInsider and Think Secret—in the Superior Court of Santa Clara County, California.
The complaint claimed that the sites published trade secrets about upcoming Apple products, and requested subpoenas to help uncover the identity of anonymous sources that allegedly fed the information to the Web sites.
This follows Thursdays tentative ruling by Judge Kleinberg against the sites, stating that they were not entitled to protection under First Amendment Reporters Privilege or the California Constitution Reporters Shield.
The delay was sparked, according to a representative for the EFF (Electronic Frontier Foundation), which is representing PowerPage.org and AppleInsider, by the judges decision to take under consideration the EFFs motion for a protective order.
This order, if granted by Judge Kleinberg, would prevent Apple from filing subpoenas against the defendants in order to uncover the identity of the Web sites anonymous sources, as well as requesting unpublished documents related to the resulting published stories.
In making their case, Apples lawyers purported to define what a valid journalist is based on the code of ethics created by the SPJ (Society of Professional Journalists).
The code includes, under the rubric "Journalists should," guidelines such as "Always question sources motives before promising anonymity" and "identify sources whenever feasible."
However, this sparked one of the coauthors of the SPJs code, Peter Sussman, a former editor for the San Francisco Chronicle, to write a letter to Apple CEO Steve Jobs and Apples lawyer in this case, in protest.
"I wrote in a personal capacity," Sussman said, "but I am certain all members of the [ethics] committee would agree with me."
"Its a misuse of the code to use it for any legal definitional purpose," said Sussman.
In his letter, Sussman wrote that "to cite the Code to support a particular interpretation ... or in any way to define who is or is not a journalist... is an inappropriate use of the Code and was never intended by its framers and would horrify every one of them."
His letter continued, "Furthermore, acceptance of Apples apparently proposed rule, that only journalists who are professionally accredited or can survive an ethical audit should benefit from the protections of the First Amendment and California Constitution, would profoundly threaten the core mission of SPJ, which is the perpetuation of a free press as the cornerstone of our nation and our liberty. Accordingly, I strongly urge that Apple withdraw that argument as well as any subpoenas justified in whole or in part by that argument."
Sussmans position was seconded by Gary Hill, the chairman of the SPJs ethics committee.
"We hope people follow the code," he said, "but its suggestions, not a tool for enforcement. We would not support using our Code of Ethics to determine who is or isnt a journalist."