Apple v. Free Speech?

February 3, 2005 • TechKnowledge No. 96

Media darling Apple Computer likes secrecy. CEO Steve Jobs likes to keep the company’s products shrouded in mystery until they are unveiled at carefully scripted events. But Apple’s zeal for privacy is matched only by its customers’ appetite for the latest Apple rumors. Mac fans flock to websites like AppleInsider and Think Secret seeking details of upcoming Apple gadgets.

In January, Apple escalated its ongoing battle with the rumor sites when it filed a lawsuit against Think Secret for printing rumors about its forthcoming Mac Mini computer. The lawsuit has been widely reported in the media, who claim that it raises new issues about the limits of free speech in cyberspace. As the Financial Times put it, “Blogs have so far operated mostly outside the law, legal experts say. Now Apple, the alternative computer maker, has decided to test the freedom of the blogosphere by suing the operator of one of the company’s most influential fan sites.”

On closer examination, it’s hard to see what the fuss is about. If anything, the incident reveals more about mainstream journalists’ condescending attitude toward their upstart online competitors 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 college student, and is therefore smaller and less polished than online magazines like Slate or Salon. But the First Amendment’s protections aren’t limited to slick publications with large staffs. Some of the Founding Fathers, after all, were prolific pamphleteers, hardly more polished than Think Secret.

It’s not obvious, then, how this case presents novel legal questions. Apple argues that because its employees are required to sign nondisclosure agreements, Think Secret must have obtained its rumors in violation of contractual obligations. Apple’s lawyers, however, would do well to review the famous Pentagon Papers decision. In 1971, The New York Times published excerpts from a classified report on the progress of the Vietnam War. The Nixon administration sued, asking for an injunction against publishing further excerpts. In a 5–4 decision, the high court ruled for the Times, holding that as long as the Times had not itself broken the law in obtaining the documents, it could not be prevented from publishing them unless their publication posed an imminent threat to national security.

Steve Jobs might disagree, but it seems clear that leaking news about upcoming Apple products poses a lesser threat to national security than leaking classified military reports. Clearly, if Think Secret did not itself sign a nondisclosure agreement, it can’t be censored because its sources did.

Apple also claims that Think Secret violated Apple’s trade secrets when it published the information. But that barely passes the straight face test. Not every piece of information can be declared a trade secret. Under the law, trade secrets must have commercial value to the holder of the secret or its competitors. Had Think Secret published schematics or internal Apple documents detailing logistical or technical details of new products, they might have had a credible case. But mere rumors about the features, appearance, and price of an upcoming product do no appreciable damage to Apple’s bottom line and are too vague to be of any use to competitors.

In truth, the only thing that is novel about the case is the suggestion that online journalists should receive weaker First Amendment protections than their print colleagues. As more and more people turn to the Internet for their news and information, it is vital that online journalists not become second‐​class citizens. In the American legal system, at least, to enjoy a robust right to free speech is not to operate “outside the law,” as the Financial Times put it. We can only hope that the Financial Times’ cavalier attitude toward censorship of online journalists reflects an ignorance of American law rather than a broader desire among print journalists to make their online colleagues second‐​class citizens.

About the Author