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

/media/news/20866/0.jpg

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.”
Wolf was in prison for refusing to hand over video he shot during a protest in San Francisco in 2005. In a deal brokered between his lawyers and federal prosecutors, Wolf posted the uncut video of the protest on his site, JoshWolf.net, gave prosecutors a copy, told them he had not witnessed any crimes and was released.

In exchange, prosecutors acceded to Wolf's key contention: that he not be made to appear before a grand jury and identify those on his videotape.

"Journalists absolutely have to remain independent of law enforcement,'' Wolf told reporters outside the gates of the prison. "Otherwise, people will never trust journalists.''
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.
When I was subpoenaed in February of last year, I was not only ordered to provide my unedited footage, but to also submit to testimony and examination before the secretive grand jury. Although I feel that my unpublished material should be shielded from government demands, it was the testimony which I found to be the more egregious assault on my right and ethics as both a journalist and a citizen.

As there was nothing of a sensitive or confidential nature on my video outtakes, I had no reason to withhold their publication once I had exhausted all my legal appeals. When that point arrived I had already spent three months behind bars. I was advised by my legal team that publishing the video would not lead to my release; instead it would indicate to the court that my imprisonment was having a coercive effect even though it was not.
…
When the judge came to realize the support for my cause was growing and that I was unlikely to waver anytime soon, he ordered both parties to meet with a magistrate judge in the hopes we could reach a solution amenable to everyone. After two rather strenuous sessions of mediation, we at last came to an agreement that not only leaves my ethics intact but actively serves the role of a free press in our so-called free socieity.(sic)
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:
In his dissenting opinion in the case of US v Coldwell (1972), Justice William O. Douglas wrote these prescient words which are not only significant to my case, but also reflect the greater state of affairs in the United States today: “As the years pass, the power of government becomes more and more pervasive. It is a power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate it. Now that the fences of the law and the tradition that protected the press are broken down, the people are the victims. The First Amendment, as I read it, was designed precisely to prevent that tragedy.”

web address: http://suicidegirls.com/news/all/20866/The-Josh-Wolf-Saga-Law-and-Order-vs.-Freedom-of-the-Blogger/