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The court noted (footnoted, to be exact) that the California reporter shield would not even protect Wolf if the contempt order was issued by a state court, since he was not connected with or employed by "a newspaper, magazine or other periodical publication." Now, never mind that this pronouncement came one footnote before the court discussed how Wolf had sold footage to local news channels. What's more interesting as far as we're concerned, is that it ignores a recent California state court decision that extended the reporter shield to cover news-oriented blogs and bloggers, regardless of any affiliation to traditional media.

That decision, of course, is O'Grady v. Superior Court, aka the Apple suit against Apple industry bloggers. In that case, the Superior Court judge ruled that people who post news content onto websites fall under the reporter's shield as long as the purpose of the website is to disseminate news to the public. The court relied on the term "other periodical publication" contained in the shield's language to justify its decision, and declared that a news blog would qualify since it fit the core purpose of the law, which is to protect the news-gathering abilities of reporters and their publications.

Some commentators have questioned whether Wolf's close ties to the anarchist group would remove him from the reporter category. But just because a food critic likes to eat, is he less of a reporter? Well, maybe, but that's only based on our personal experience of food critics . . .

Anyway, the real issue is how this Ninth Circuit decision will affect any future rulings on the reporter shield by a California state court. After all, whither goeth California, goeth the nation.

Since the Ninth Circuit decision was unpublished, it has basically no precedential effect. So, technically, it won't affect things at all. And since the Supreme Court of California has yet to weigh in on the issue of blogs and the reporter's shield, there's no real conflict between the two interpretations of the shield. You can bet that members of the California judiciary are paying attention to this one, however, and the legal opinions of a Ninth Circuit panel will definitely influence how jurists look at the issue in the future. When the issue finally makes its way to the California Supreme Court - and it will - bloggers may just be pushed out from under the shield's protection.

And that will mean that a lot more of the Josh Wolfs out there will be getting acquainted with the prison system very soon. ®

Kevin Fayle is an attorney, web editor and writer in San Francisco. He keeps a close eye on IP and International Law issues.

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