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The rights of bloggers are before a federal court today. A judge in Brooklyn will consider whether bloggers are entitled to the same free-speech protections given to reporters for newspapers and other media. This case involves leaked documents belonging to the pharmaceutical giant Eli Lilly.
NPR's Snigdha Prakash reports.
SNIGDHA PRAKASH: The documents concern the drug Zyprexa. It's a schizophrenia drug and Lilly's best-seller. Lilly had turned over the documents to lawyers representing patients who were suing the company. As is common in such cases, the thousands of pages of internal Eli Lilly e-mails, research studies and marketing reports were kept confidential by court order. But last month, they leaked out and were obtained by several organizations including the New York Times and NPR.
On December 17th, the Times ran the first of several stories based on the leaked documents. According to the Times, the documents showed that Lilly had engaged in a decade-long effort to play down the risks of Zyprexa - risks such as excessive weight gain and diabetes. Lilly strongly disputes the Times' description of what the documents show.
For a couple of days you could judge for yourself because the Zyprexa documents were posted on the Web by individuals to whom they were also leaked. But on December 18th, one day after the Times' first story ran, Lilly sought and obtained a temporary court order to get its documents back. The New York Times refused, but the Web links were shut down.
Today, federal judge Jack Weinstein will be asked to restore the links. Fred von Lohmann, of the Electronic Freedom Foundation in San Francisco, will argue that the order to shut down the Web links violated the protections of the First Amendment.
Mr. FRED VON LOHMANN (Electronic Freedom Foundation): Courts in the United States, thanks to the First Amendment, are not allowed to issue what are called prior restraints. After all, the Pentagon Papers were also allegedly improperly obtained, and the courts have said over and over again, it doesn't matter if the documents were improperly obtained, courts do not issue stop-the-presses orders against people who happened to get the documents after they had been released.
PRAKASH: Von Lohmann's client is anonymous. John Doe posted entries on a Web page about the Zyprexa documents. He doesn't have the stature of the reporters involved in the Pentagon Papers case - they worked for The New York Times and The Washington Post.
Neil Richards, a professor of law at Washington University in St. Louis, says this case squarely poses the question of whether John Doe deserves the same protections as the established media.
Professor NEIL RICHARDS (Law, Washington University): A number of people have made claims to be the press. And the Supreme Court, in interpreting the First Amendment, has defined the press very broadly because it doesn't want to foreclose new types of people who are engaged in press-like activities from claiming First Amendment protection.
PRAKASH: Richards thinks the court will decide that John Doe is a full-fledged member of the press. But to release the documents on the Web, Richards says, Judge Weinstein will also have to decide that the public interest in knowing what's in the documents outweighs Lilly's interest in protecting its trade secrets.
For its part, Lilly says releasing the documents could harm patients and physicians because the documents tell only part of the story about Zyprexa. A ruling in the case could come as early as today.
Snigdha Prakash, NPR News, Washington.