James Madison understood that "a popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both." Legal protections for media sources and unpublished information are critical means for journalists of all stripes to acquire information and communicate it to the public. Imagine if "Deep Throat," the informant critical to Woodward and Bernstein's investigation of the 1972 Watergate burglary, knew that his identity could be obtained through legal process. His career, and perhaps his life, would have been in serious jeopardy, and a cautious individual would have kept silent.
Fearful of the devastating effect compelled disclosure could have on the free flow of information -- the lifeblood of a functioning democracy -- the judiciary has understood the vital connection between the confidentiality of sources and the freedom of the press, establishing a privilege under the First Amendment. Some states have gone further, establishing reporter's shields in their statutes, or, as here in California, enshrining the shield in the state constitution.
Because today's online journalists frequently depend on confidential sources to gather material, their ability to promise confidentiality is essential to maintaining the strength of independent media. As the courts have confirmed, what makes journalism journalism is not the format but the content. Where news is gathered for dissemination to the public, it is journalism -- regardless of whether it is printed on paper or distributed through the Internet.
Online journalism, whether in the form of blogs, email newsletters, or websites, is a growing part of our national discourse. The democratization of media inherent in the Internet allows any individual to reach out to a vast audience, without the constraints of traditional media. Blogs gain in importance and readership by the content and currency of their news, not their affiliations with the media of old. Indeed, we've seen numerous cases where blogs break the news first, and traditional media follow. Bloggers hammered on the Trent Lott story until mainstream media was forced to pick it up again. Three amateur journalists at the Powerline.com blog were primarily responsible for discrediting the documents used in CBS's rush-to-air story on President George Bush's National Guard service. And the list goes on.
If Apple's subpoenas to Apple Insider, PowerPage and Think Secret are allowed to proceed and the Apple news sites EFF is representing are forced to disclose the confidences gained by their reporters, potential confidential sources will be deterred from providing information to the online media, and the public will lose a vital outlet for independent news, analysis, and commentary. We can't let that happen.
