Apple v. Free Speech?


Media darling Apple Computer likes secrecy. CEO Steve Jobs likesto keep the company's products shrouded in mystery until they areunveiled at carefully scripted events. But Apple's zeal for privacyis matched only by its customers' appetite for the latest Applerumors. Mac fans flock to websites like AppleInsider andThinkSecret seeking details of upcoming Apple gadgets.

In January, Apple escalated its ongoing battle with the rumorsites when it filed a lawsuit against Think Secret for printingrumors about its forthcoming Mac Mini computer. The lawsuit hasbeen widely reported in the media, who claim that it raises newissues about the limits of free speech in cyberspace. As theFinancial Times put it, "Blogs have so far operated mostlyoutside the law, legal experts say. Now Apple, the alternativecomputer maker, has decided to test the freedom of the blogosphereby suing the operator of one of the company's most influential fansites."

On closer examination, it's hard to see what the fuss is about.If anything, the incident reveals more about mainstreamjournalists' condescending attitude toward their upstart onlinecompetitors than it does about law or technology.

Think Secret is not a "blog." It is a commercial,advertisement-supported online magazine. It's run by a collegestudent, and is therefore smaller and less polished than onlinemagazines like Slate or Salon. But the FirstAmendment's protections aren't limited to slick publications withlarge staffs. Some of the Founding Fathers, after all, wereprolific pamphleteers, hardly more polished than Think Secret.

It's not obvious, then, how this case presents novel legalquestions. Apple argues that because its employees are required tosign nondisclosure agreements, Think Secret must have obtained itsrumors in violation of contractual obligations. Apple's lawyers,however, would do well to review the famous Pentagon Papersdecision. In 1971, The New York Times published excerptsfrom a classified report on the progress of the Vietnam War. TheNixon administration sued, asking for an injunction againstpublishing further excerpts. In a 5-4 decision, the high courtruled for the Times, holding that as long as theTimes had not itself broken the law in obtaining thedocuments, it could not be prevented from publishing them unlesstheir publication posed an imminent threat to nationalsecurity.

Steve Jobs might disagree, but it seems clear that leaking newsabout upcoming Apple products poses a lesser threat to nationalsecurity than leaking classified military reports. Clearly, ifThink Secret did not itself sign a nondisclosure agreement, itcan't be censored because its sources did.

Apple also claims that Think Secret violated Apple's tradesecrets when it published the information. But that barely passesthe straight face test. Not every piece of information can bedeclared a trade secret. Under the law, trade secrets must havecommercial value to the holder of the secret or its competitors.Had Think Secret published schematics or internal Apple documentsdetailing logistical or technical details of new products, theymight have had a credible case. But mere rumors about the features,appearance, and price of an upcoming product do no appreciabledamage to Apple's bottom line and are too vague to be of any use tocompetitors.

In truth, the only thing that is novel about the case is thesuggestion that online journalists should receive weaker FirstAmendment protections than their print colleagues. As more and morepeople turn to the Internet for their news and information, it isvital that online journalists not become second-class citizens. Inthe American legal system, at least, to enjoy a robust right tofree speech is not to operate "outside the law," as theFinancial Times put it. We can only hope that theFinancial Times' cavalier attitude toward censorship ofonline journalists reflects an ignorance of American law ratherthan a broader desire among print journalists to make their onlinecolleagues second-class citizens.