Editor’s note (March 2025): This article is part of the Blog Herald’s editorial archives. Originally published in 2005, it has been revised and updated to ensure accuracy and relevance for today’s readers.
A legal battle that is changing how we define journalism
In early 2005, Apple Computer did something that would quietly change the legal landscape for every blogger, newsletter writer, and independent online publisher that followed. Three bloggers—PowerPage’s Jason O’Grady and the team behind AppleInsider—went to court to find out who leaked details about an upcoming product codenamed “Asteroid.” Apple’s argument was simple: these were not journalists. They were just bloggers. And bloggers, it meant, didn’t deserve the protections that protect journalists. New York Times or The Washington Post.
This argument was not justified. And the story of why it still doesn’t matter is just as important today—perhaps more than ever.
What the case was really about
Apple filed a lawsuit after AppleInsider and PowerPage published details about an unreleased FireWire audio interface for GarageBand. Apple argued that the information was a trade secret and asked for the sources. To get them, he called out not only the bloggers, but also their email service provider – the Electronic Frontier Foundation (EFF) stepped in to protest.
Decision of the first court In March 2005, against the bloggers, Judge James Kleinberg refused to grant them statutory protection. Asked whether bloggers qualify as journalists, he said, other than the basic point, no one has a license to violate trade secret law. It was a narrow but damaging decision and sent a clear message to the blogging community: don’t rely on the law behind you.
But bloggers appealed. In May 2006, the California Court of Appeals unanimously overturned that decision.
The judgment that matters
An appeals court was held It states that online journalists have the same right to protect the confidentiality of their sources as offline reporters. It also found that Apple’s subpoena to obtain email records from the bloggers’ service provider violated the federal Stored Communications Act.
Crucially, the court refused to define what “legal journalism” looks like. In the most quoted part of the opinion, the justices wrote that they could find “no workable test or principle” to distinguish legal from illegal news, and that any attempt by the courts to draw such a line would threaten the purpose of the First Amendment.
This framework was a gift to every independent publisher operating outside the traditional media industry. The shield law, the court said, was designed to protect the act of gathering and disseminating news — not the institution that does it. By this definition, what O’Grady and his peers were doing was journalism. Full stop.
Why it still matters in 2025
It can be tempting to present this work as a relic—a drama from the early days of blogging, before Substack, before creators were monetized, before every major brand had a “content strategy.” But the questions he raised were never answered at the federal level.
There is still no federal shield law in the US.
PRESS Law — that will protect the confidentiality of a journalist’s source whether you work for a newspaper or run a solo newsletter — passed the U.S. House of Representatives unanimously in January 2024. His definition of “undercover journalist” was broad enough to include bloggers, independent creators, and anyone who regularly collects and publishes information in the public interest. But the bill was blocked in the Senate and with the current administration openly opposed to it, its prospects look bleak.
From 2024 onwards 49 states and Washington, D.C. recognize some form of reporter’s privilege — but this patchwork of state-level protections does not extend to federal court proceedings. A blogger in California may have a strong defense; the same blogger facing a federal subpoena is less certain.
For anyone building an audience around original reporting, source-based stories, or industry leaks—and many bloggers do just that—this gap is not theoretical.
Apple could not answer the deeper question
What Apple’s legal team ultimately failed to do was provide a compelling reason why O’Grady and his colleagues were not practicing journalism. They covered a shot. They cultivated the sources. They published information that their readers wanted and couldn’t get anywhere else. That’s the thing.
The instinct to divide the media world into “real journalists” and everyone has always talked about institutional protection rather than the actual flow of information. Print journalism in the 18th and 19th centuries was not what it was in the 20th century. Early American newspapers were partisan, opinionated, and often controlled by a single person wearing every hat. The idea of a reliable professional journalist is relatively new and has never been the basis on which press freedoms have been established.
It’s function, not form, that matters. Are you collecting information, verifying it to the best of your ability, and putting it in front of the people who need it? Then whatever platform you use, you are doing journalism.
What this means for bloggers and independent publishers today
The Apple case taught the blogging world something it has yet to master: legal protection is not automatic and it is not permanent. The 2006 decision was a victory, but an appellate decision at the state level in California. This is not a constitutional guarantee.
Independent publishers working with sources—whether they cover local government, a particular industry, or a niche tech beat—would do well to understand the reporter’s landscape of privilege in their jurisdiction. EFF’s resources on this remain the most practical. Press freedom organizations such as the Reporters Committee on Freedom of the Press monitor state-by-state protections in detail.
More broadly, the battle over who counts as a journalist continues not only in courtrooms. Platforms also make these decisions tacitly through access policies and content moderation rules. The question of whether an independent creator should be treated the same as a credentialed reporter shapes everything from the transition to press to the monetization of the platform and how the challenge is viewed.
Apple, in turn, eventually settled its separate lawsuit against Think Secret in 2007, with the site shut down as part of the settlement. The legal doctrine he helped to establish, however, continued to be established.
The 2005 verdict did not chill bloggers. They were emboldened by the decision and the appeals court’s willingness to make it clear that the law cannot decide who is qualified to practice journalism. This spirit did not go anywhere. But the legal infrastructure to protect it still has a long way to go.
