NEWS: The Josh Wolf Saga: Law and Order vs. Freedom of the Blogger?

POLITICS: The Josh Wolf Saga: Law and Order vs. Freedom of the Blogger?

In July of 2005, activist and video blogger Josh Wolf attended and filmed an anarchist demonstration in San Francisco’s Mission District. The demonstration, which was organized to protest the World Trade Organization, turned violent as an SFPD officer’s skull was fractured and a police car was damaged and overturned. Because the SFPD receives federal funding, US attorneys made a federal case out of the incident. When Wolf sold some of his footage to local TV stations, the Feds came calling.

“Give us your unedited footage and testify to your involvement and knowledge of the events,” they said to Wolf, “or go to jail.”

Wolf, facing an indefinite sentence for contempt of court, didn’t blink. Despite Wolf’s assurances that there was nothing of evidentiary value on the tapes and his offer to let a judge review them in camera, the feds didn’t blink either and jailed him for contempt. That was in October of last year. He was finally released on Tuesday, April 3rd. All in all, Wolf spent a total of seven and a half months in Dublin Federal Correctional Institution.

But why? Why not just turn over the tape? Well, the story gets a little convoluted, but the basic idea is pretty straightforward: he thought that he was a journalist and that the Constitution protected journalists from undue government interference. It’s a quaint idea, really. Dunno where he would have gotten that idea.

So Wolf decided to play a game of legal chicken, pitting release of the video to a federal grand jury versus his own freedom. On Tuesday after many long months and legal setbacks, Wolf finally “won.”

The fact that the video was being sought by federal rather than state prosecutors may seem like a subtle point, but ended up making all the difference. California is one of many states who have enacted shield laws, which are designed to protect journalists from having to turn over their source materials to police or other governmental authorities in situations such as these. Thus, if Wolf's video were being sought by state or local police he might have been protected by California's shield law.

(It is worth noting that there is some debate as to whether Wolf would have qualified for protection under California’s shield law, which only exempts someone from subpoena if they are “A publisher, editor, reporter or other person connected with or employed upon a newspaper, magazine, or other periodical publication or by a press association or wire service, or any person who has been so connected or so employed…” Courts have yet to rule conclusively as to whether an independent blogger like Wolf woud fit that description.)

However, there is no federal shield law for journalists. Instead, federal courts follow the Supreme Court precedent set in the 1972 case of Branzburg v. Hayes, which afforded journalists essentially no greater protection against a grand jury subpoena than private citizens. Federal prosecutors, unrestrained by any sort of shield law, could then compel Wolf to give up the goods or face civil contempt.

In civil contempt, the contemnor is imprisoned for as long as it takes that person to comply with the court’s order. However, once it becomes clear to the court that the contemnor will not comply, the incentive for keeping that person in jail lessens. In his first public statement since his release, Wolf explained how his stubbornness turned into leverage.

The video itself goes a long way towards proving Wolf’s assertion that the images contained therein contain little to no evidentiary value. The first 85% of the video is almost wholly unremarkable, except for this really sweet part where the anarchists blare Iron Maiden’s “Run To the Hills” from a stack of speakers. That part rocked! Then, about 4/5ths of the way in we see a very poorly lit and somewhat incomplete and confusing confrontation between a few police and a handful of protesters. Whether prosecutors will be able to make anything out of it is doubtful. In the meantime the sheer lack of anything interesting on the tape proves that Wolf is both a mediocre videographer and an extremely principled person. He knew all along the tape showed nothing and that to turn it over would not endanger his friends. This knowledge did not sway him for seven and a half long months. Whatever you think about Wolf's politics, his strength and character are undeniable.

But several important questions remain: Is Wolf a journalist or an activist? If he’s the former, shouldn’t he be afforded First Amendment protection? If he’s the latter, is it possible for him to also be the former? And does the fact that he’s a “blogger” rather than a “reporter” matter at all in the age of the intertubes and blogosphere? If so, should it? If not, why not? None of these questions appear headed for resolution any time soon.

Furthermore, were federal authorities actually in the right to use the contempt power to keep Wolf in prison for all that time? Despite donations of legal fees from several free press organizations, Wolf lost in every court through every step of his journey. Thus it's clear that the feds had the weight of legal authority on their side. But should the interest of “catching the bad guys” really outweigh the interest of “free press”? The Branzberg case seems to say that it does, but the Branzberg case was also the reason why most states enacted shield laws. In response to this dilemma, Wolf quotes a personal hero of mine:

Civic Principals: 1
US Government: 0

Wow. Brilliant article, 'Brosa.

ethics, schmethics. it's Run To The Hills

awesome article

It's hard for me to see this as a victory, given that Wolf gave the prosecutors almost everything they had requested in the first place. I don't blame him for deciding not to wait in jail until the Grand Jury expired, but this hardly seems like a cause for celebration.

I disagree. Maybe next time the federalis feel like intimidating witnesses with prosecution/jail they may think twice and either follow due process or ask nicely. Crushing the American Constitution in order to crush protests should be fought tooth and nail.

So um...are you going to be protected by CA shield laws 'Brosa?

Pleadings and so forth (scroll down).

When Wolf sold some of his footage to local TV stations, the Feds came calling

At this point, the Feds had a right to open an investigation.

Our government has the right to tax and regulate commerce.

Not that I agree with the "hand over or go to jail" ultimatum, but it appeared that we in this forum were overlooking a crucial aspect of this case.

You are wrong. Nothing about his selling the footage invokes the commerce clause.

But it does bolster any argument that this guy was/is a journalist.

Agreed. Moreover, nothing about his selling the tapes had anything to do with the charges at issue.

Besides, the fact that they had a right to ask for the tapes is secondary. The issue is whether he should be forced under penalty of jail time to hand them over.

The fact that he didn't have to testify as to the identities of the people on the tape is (according to him) what he was actually fighting for. After all, he knew that the tapes had very little real value.

Compromise is not always a bad thing. Especially when your point has been made by the time you do it.

Whatever do you mean?

step in the right(s) direction--which is to the left. josh is "free."

revisionist!

(sinking ship, etc.)

Well done, babe. Good article.

And good for Josh Wolf. That's a damn long time to stay in prison to make a point, even a point really worth making, and I commend him for it.

Which, very unfortunately, doesn't make a difference. The lack of federal shield laws confuses me to no end. It's like a vital element of the free press doesn't exist when the federal government is involved (and I mean really doesn't exist at all, not even that nominal lip service that our other freedoms get paid).

Wow. Seven and a half months in jail to protect one's opinion of an idea. That man must be a real patriot.

That last quote reminds me of something Thomas Jefferson said:

"The natural progress of things is for liberty to yield and government to gain ground."

Of course, he also said:

"Every generation needs a new revolution."

Fucking anarchist.

Nice article chief.

i remember seeing the story about him going to jail in a documentary, but i can't for-the-life-of-me recall the name...

anyone know?

Why should the place on which an article is made available define weather or not the writer counts as a reporter.

recently I was flamed quite malicously by mods and members of another site for posting articles from this site. It got so bad that i have now quit that site even though it was a pay site that i was paid up through the year it was only $15 but still kinda pisses me off

anyway my point is

the source shouldn't matter if some one rights an article and other people read it that's all it takes for them to be a reporter/journalist.

While I agree with this point in general, the flipside of that argument is sort of a "where would the line between journalist and random fuckbag be drawn?"

In other words, if Wolf qualifies as a journalist and thus eligible for protection under a shield law, what about someone like PointBlank? Dude writes articles about cats signing book deals. Should he qualify as a journalist? What about someone who links the cat article on his myspace page? Should he? I guess the question is: If bloggers count, where does the line between blogger and ordinary citizen get drawn? Because like... EVERYONE has a blog these days.

(Please note: I liked PointBlank's Kitty article. I'm just using it to illustrate a point. And to make fun of him.)

FLAG.

Nice article.

I learned a new word, too. Guess which one.

Variant spelling, Subrosa. Nice work.