Editor’s note (March 2025): This article is part of Blog Herald’s editorial archive. Originally published in 2005, it has been reviewed and updated to ensure accuracy and relevance for today’s readers.
In early 2005, Apple Computer did something that would quietly reshape the legal landscape for every blogger, newsletter writer, and independent online publisher who came after. It went to court to compel three bloggers — Jason O’Grady of PowerPage, and the team behind AppleInsider — to reveal who had leaked details about an upcoming product codenamed “Asteroid.” Apple’s argument was simple: these weren’t journalists. They were just bloggers. And bloggers, it implied, didn’t deserve the same protections that shielded reporters at the New York Times or the Washington Post.
That argument didn’t hold. And the story of why it didn’t still matters deeply today — perhaps more than ever.
What the case was actually about
Apple had filed suit after AppleInsider and PowerPage published details about an unreleased FireWire audio interface for GarageBand. Apple argued the information constituted trade secrets, and it wanted the sources. To get them, it subpoenaed not just the bloggers but also their email service provider — a move the Electronic Frontier Foundation (EFF) stepped in to challenge.
The initial trial court ruling in March 2005 went against the bloggers, with Judge James Kleinberg declining to grant them shield law protections. The question of whether bloggers qualified as journalists was, he said, beside the point — no one had a license to violate trade secret law. It was a narrow but damaging ruling, and it sent a clear message to the blogging community: don’t count on the law to have your back.
But the bloggers appealed. And in May 2006, the California Court of Appeal reversed that decision unanimously.
The ruling that mattered
The appeals court held that the online journalists had the same right to protect the confidentiality of their sources as offline reporters do. 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 get drawn into defining what “legitimate journalism” looked like. In the opinion’s most quoted passage, the judges wrote that they could find “no workable test or principle” to distinguish legitimate from illegitimate news — and that any attempt by courts to draw such a line would threaten the very purpose of the First Amendment.
That framing 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 doing it. By that definition, what O’Grady and his peers were doing was journalism. Full stop.
Why this still matters in 2025
It might be tempting to file this case away as a relic — a drama from the early days of blogging, before Substack, before creator monetization, before every major brand had a “content strategy.” But the questions it raised have never really been answered at a federal level.
There is still no federal shield law in the United States.
The PRESS Act — which would protect journalist-source confidentiality regardless of whether you work for a newspaper or run a solo newsletter — passed the U.S. House of Representatives unanimously in January 2024. Its definition of “covered journalist” was broad enough to include bloggers, independent creators, and anyone who regularly gathers and publishes information in the public interest. But the bill was blocked in the Senate and, with the current administration explicitly opposing it, its prospects look dim.
As of 2024, 49 states and Washington, D.C., have recognized some form of reporter’s privilege — but that patchwork of state-level protections doesn’t extend to federal court proceedings. A blogger in California might have robust protections; the same blogger facing a federal subpoena has far less certainty.
For anyone building an audience around original reporting, source-based storytelling, or industry leaks — and plenty of bloggers do exactly this — that gap is not theoretical.
The deeper question Apple couldn’t answer
What Apple’s legal team ultimately failed to do was provide a coherent reason why O’Grady and his colleagues weren’t engaged in journalism. They covered a beat. They cultivated sources. They published information their readers wanted and couldn’t get elsewhere. That’s the job.
The instinct to divide the media world into “real journalists” and everyone else has always said more about institutional defensiveness than about the actual flow of information. Print journalism in the 18th and 19th centuries looked nothing like what it became in the 20th. Early American newspapers were partisan, opinionated, and often run by a single person wearing every hat. The idea of a credentialed professional journalist is relatively recent — and it was never the basis on which press freedoms were enshrined.
What matters is the function, not the form. Are you gathering information, verifying it to the best of your ability, and putting it in front of people who need it? Then you’re doing journalism, whatever platform you’re using.
What this means for bloggers and independent publishers today
The Apple case taught the blogging world something it still needs to internalize: legal protections are not automatic, and they are not permanent. The 2006 ruling was a victory, but it was a state-level appellate ruling in California. It is not a constitutional guarantee.
Independent publishers who work with sources — whether covering a local government, a specific industry, or a niche tech beat — would do well to understand the reporter’s privilege landscape in their jurisdiction. The EFF’s resources on this remain some of the most practical available. Press freedom organizations like the Reporters Committee for Freedom of the Press track state-by-state protections in detail.
More broadly, the fight over who counts as a journalist is ongoing, and not just in courtrooms. Platforms make these decisions too, quietly, through access policies and content moderation rules. The question of whether an independent creator gets the same treatment as a credentialed reporter shapes everything from press passes to platform monetization to how a subpoena gets handled.
Apple, for its part, eventually settled its separate suit against Think Secret in 2007, with the site shutting down as part of the agreement. The legal doctrine it helped establish, however, kept building.
The bloggers weren’t chilled by that 2005 ruling. If anything, they were emboldened by the decision — and by the appeals court’s willingness to say plainly that the law doesn’t get to decide who deserves to practice journalism. That spirit hasn’t gone anywhere. But the legal infrastructure to protect it still has a long way to go.
