by Paul Alan Levy
Scott Michelman recently blogged here about Judge William Alsup’s recent order directing Google and Oracle to disclose financial relationships with bloggers and others who have published opinions about the intellectual property litigation between those parties. Although Judge Alsup’s order contains no findings and does not explain its reasoning—and maybe that is itself a problem with an order that is directed to litigants’ financial support for expression—I share Scott’s skepticism about the order. My reasoning is a little different from his, though.
For example, Scott describes the order this way “that both sides disclose individuals to whom they have paid money to comment about the case publicly.” Although I rather suspect that this is why the judge entered his order, that isn’t what the order says. Rather, it demands that each party identity every person who has both (1) written about “any issues in this case” and (2) received any money from either party (or its counsel) other than “normal subscription fees.” As Eric Goldman points out in the same Ars Technica article in which I was quoted, this could include any blogger who carries Google ads; it also reaches any newspaper that carries ads from either Google or Oracle. And the order doesn’t require any explanation of why any given writer received money. So in theory, the judge’s order could produce a ridiculously large quantity of truly useless data.
Maybe one can understand the judge casting the widest possible net, if his idea is to winnow down from the initial list by asking for more detail about particular writers appearing on a list. Written too narrowly, the order could be too easily evaded by a litigant who leaves a given writer off the list because, the litigant thinks to itself, "I didn't make that payment to get material written about this case in particular." Or, "I was hoping to influence a general attitude of friendship, but not to affect any particular articles." Yet perhaps the judge wasn’t thinking very carefully about the details; the fact that he did not take advertising payments into account in drafting the order suggests at least that much.
But suppose the judge’s order were limited to those authors who were being paid by a party to write about the case, or suppose it was limited to a broader category of writers receiving payment, with the plan being to investigate particular relationships more carefully; Scott’s further question is, is that a worthwhile enterprise?
I am not prepared to deny that the public’s understanding of expression about the case, and its assessment of individual writers’ credibility, could be better informed if readers knew that a particular writer was a shill paid by one side or the other. Some public interest groups receive financial support from particular companies or industries, sometimes so much so that an argument could be made that they are beholden to those industries (Public Citizen avoids that problem by taking no money from corporations or, indeed, from governments). Could the public better analyze the advocacy from those groups? Might some readers infer that their public policy advocacy may be shaped by their financial supporters? Might those who advocate one position be better able to rebut their adversaries publicly if they can raise questions about their funding sources? No question about it (a recent example of such advocacy is here). I myself have a certain level of curiosity about just who is funding Scott Cleland, the ultimate anti-Google. But that does not mean that a law requiring all non-profits to identify all funding sources would be sensible, or, indeed, that a law requiring everybody who writes about litigation would be sensible.
Absent some generally applicable rule of procedure governing payments by advocates, should a federal judge be spending his time (and, necessarily, the litigants’ time) getting to the bottom of the issue of whether particular writers have a financial incentive to cover a particular case or particular legal issues? The case is over, and Judge Alsup casts his order as possibly being useful “on appeal or on any remand.” Is that right? Surely we can expect judges to take public expressions of opinion about issues in litigation for what they are worth without devising new ways to sanction litigants who foster such expression. Does Judge Alsup think that judges on the Ninth Circuit need to know who gives money to any writer so that they can better decide what credence to give citations to blog articles or, indeed, to purported works of scholarship? Presumably federal appellate judges and even federal district judges (or their law clerks, more likely) will simply read the cited material and give them the persuasive authority that is inherent in the arguments, without any need to look for the hidden biases that might be revealed by financial information.
It would be nice to have a better sense of what prompted Judge Alsup to issue this order. Absent a compelling explanation, it doesn't make sense to me.
Oracle responded to the order with a brief disclosure, while Google blew the judge off, saying that the number of names covered by the literal terms of the order was so vast as to make the disclosure too difficullt. Judge Alsup refused to accept Google's response, correcting some of the most egregiously overinclusive parts of the order (such as advertisers and universities) but demanding identification of non-profit organizations, treatise-writers and bloggers. Google is also ordered to identify any public commenters among its non-testifying experts (who under the terms of Rule 26(b)(2) and (4) did not have to be disclosed). Google is directed to conduct "a reasonably diligent search" for commenters covered by the order, and, as if speaking to a child, Judge Alsup says, "Please simply do your best but the impossible is not required. Oracle managed to do it."
There is a tad more explanation: "public commentary that purports to be independent may have an influence on the courts and/or their staff if only in subtle ways. If a treatise author or blogger is paid by a litigant, should not that relationship be known?"