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Monday, April 26, 2010

Is Gawker's Shield Law Claim Legit?

Posted By on Mon, Apr 26, 2010 at 3:10 PM

click to enlarge Gizmodo bought itself a whole lotta trouble along with its spiffy new iPhone. Will the shield law come to the rescue?
  • Gizmodo bought itself a whole lotta trouble along with its spiffy new iPhone. Will the shield law come to the rescue?
Gawker Media certainly has plenty of new media attitude to spare. But, arguing its case in the wake of legal heat following the company's shady maneuver to obtain a next-generation iPhone reportedly left on a bar stool by an inebriated Apple employee, Gawker is now falling back on the oldest old-school strategy. It's evoking the journalistic shield law.

Making things even more interesting, Terry Francke, the executive director of Californians Aware and a First Amendment expert, told SF Weekly that Gawker's claim sounds about right. "The shield law reaches any information acquired in the course of news-gathering by a journalist," he says.

This, presumably, includes the website Gizmodo -- part of the Gawker family -- throwing down $5,000 in cash for a newfangled iPhone purportedly left at a bar by now-infamous Apple engineer Gray Powell.

The account Gizmodo published on its own site would make it very difficult to argue that the site -- and, most certainly, the unidentified iPhone seller -- didn't violate the law. As Slate pointed out earlier this month, there are very definite rules around buying and selling "found" property. The bar-goer who found the phone definitely ran afoul of the law when he didn't turn the iPhone over to the police. And Gizmodo will have a hard time claiming it didn't know the phone was obtained unlawfully -- what with its own account of how it ended up in their possession and its hefty purchasing price ... in cash.

Francke, however, points out that the aforementioned code regarding the selling of found property is civil, and not penal. *What this means is that the unidentified iPhone seller, and, potentially, Gizmodo are facing the potential legal wrath from the enraged folks at Apple. But as for any criminal allegations -- and the San Mateo County Sheriff's Office obtaining a search warrant, forcefully entering the home of Gizmodo editor Jason Chen, and carting off numerous effects -- that's more questionable.

Interestingly, the ruling that extended shield law protection to blogs -- O'Grady v. Superior Court, 2006 -- also involved Apple. The company's subpoena to determine who, internally, released confidential information to Jason O'Grady's "The Power Page" blog was deemed to run afoul of the shield law, which protected O'Grady's tech blog as surely as it protects Woodward and Bernstein.

Even if it's largely aimed "at those who follow everything Steve Jobs does," notes Francke, "it's still a qualifying publication."

*An earlier version of this story referred to both of the state codes we linked to as civil codes. The codes regarding the purchasing of stolen property are penal codes. That being said, the point we failed to make clearly enough is that while Gizmodo may not have violated criminal codes -- it is accused of obtaining "found" and not "stolen" goods -- it is facing the same burden of proof. That is, it must argue that it did not knowingly purchase goods that were obtained improperly.

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" is a staff writer and columnist for SF Weekly, which he has written for since 2007. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers... more


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