In some ways, Joshua Wolf cuts an unlikely figure as a crusader for the rights of journalists. The 24-year-old California videoblogger’s journalistic portfolio is “thin,”, according to Anthony Lappe, executive editor of Guerilla News Network. Some traditional journalists are discomfited by the Wolf’s sympathy for the anarchists whose activities he often covers.
But Wolf’s willingness to go to prison rather than turn over unpublished video of a July, 2005 anti-globalization protest in San Francisco to a federal grand jury has earned him the support of journalists and civil liberties advocates across the United States. Prosecutors say they need the video outtakes to help them determine how a police officer was injured and a police car was damaged. Wolf and his lawyers say the video contains no information about the alleged crimes, and that as a journalist, he should not be compelled to turn them over. Further, they charge, the prosecutors’ actions in this case endanger not only the First Amendment rights of journalists, but the civil liberties of ordinary citizens with dissident political views.
After a six-month court battle that has gone as for as the Ninth Circuit Court of Appeals, Wolf was imprisoned on charges of civil contempt on September 22, 2006 at the Federal Correctional facility in Dublin, California.
“As unconventional and non-traditional as [Josh Wolf's] work in journalism may be in many respects, he is contesting an age-old argument… and that’s that journalists never should be arms of law enforcement,” says Christine Tatum, president of the Society of Professional Journalists. “Josh has, at great personal cost, taken quite a stand – an admirable stand, and he has said…, ‘I am not divulging unpublished, unedited, unaired material…for a grand jury’s review. And we stand wholeheartedly behind him.”
So much so that the SPJ donated $30,000 for Wolf’s legal fees and convinced his lawyers to cap those fees at $60,000. Tatum said the grant is SPJ’s largest-ever award from its legal defense fund.
According to an e-mail from Luke Macaulay, a spokesman for the U.S. Attorney’s office, “The incident is under investigation so that the [Grand Jury] can determine what, if any, crimes were committed… As we have argued in our court filings, the GJ is therefore entitled as a matter of law to all of the evidence in Wolf’s possession related to the demonstration. Six separate judges or panels have now ruled unequivocally that we have lawfully issued a subpoena for a legitimate investigative purposes, and that the material in question should be furnished to the grand jury.”
The case law on journalists’ efforts to withhold information from grand juries rarely favors reporters. The most frequently cited precedent is Branzburg v. Hayes, a 1972 Supreme Court case in which it was determined that, with rare exceptions, journalists have no greater protection than other citizens when it comes to complying with a grand jury. The exceptions are when the prosecutor’s actions can be reasonably considered harassment, or when disclosure would violate the journalists’ Fifth Amendment protection against self-incrimination.
Coincidentally, at the time Branzburg was handed down, the presiding judge in Wolf case, William Alsup, clerked for Justice William O. Douglas, author of a key Branzburg dissent. Douglas wrote:
“Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And fear of accountability will cause editors and critics to write with more restrained pens.”
However, in a redacted transcript of Wolf’s June 15, 2006 hearing before Alsup, the Judge departed from Douglas’ view, declaring, “The U.S. Supreme Court said there is no journalist newsman’s privilege under the First Amendment.”
For Wolf’s supporters, one of the major problems with his case is the fact that it’s being prosecuted in Federal court. Normally, they maintain, such a case would be tried at the state or local level, where California’s shield law would apply. That law protects journalists from being required to disclose unpublished information gathered for a news story. According to news reports, federal prosecutors say the case falls within their jurisdiction because the San Francisco Police Department receives federal funding and thus, the damaged police car is federal property. In an August, 2006 interview, Wolf asked, “If an S.F. police vehicle is considered federal property, then what isn’t federal property?”
Tatum agreed. “That this is a ‘federal’ case is absolutely positively laughable,” she said, adding, “This is just an example of the federal prosecutor over-reaching to make a point, and to stick it to the news media, just to see if he or she can.”
But according to Macaulay, “This office did not initiate a federal investigation in order to circumvent the California State Shield laws.” Besides, he noted, the September 1 ruling handed down by the 9th circuit court declared that Wolf failed to prove that he met the California law’s definition of a journalist – someone connected with or employed by a newspaper, periodical, wire service, press association or other recognized news outlet.
Wolf’s status as a journalist has, indeed been open to debate. Part of the problem is that existing law hasn’t caught up with the ways in which the Internet has affected the newsgathering process, according to David Bodney, a media lawyer with the Phoenix office of the law firm of Steptoe and Johnson, and an adjunct professor of media law at Arizona State University. “Legislators are struggling with how best to define journalists for the purpose of establishing a statutory privilege,” he said.
For Jane Briggs-Bunting, director of the Journalism program at Michigan State University, the problem is Wolf’s objectivity. “You can’t step in and out of being a journalist,” she maintained.”You can’t become an advocate. ” Tatum added, “There is a degree of discomfort that I’ve felt with some of his assertions, as far as viewing himself as an advocate. I think that it’s very important for online journalists to begin to understand.. that it’s very, very important that you do maintain some sort of objectivity and distance.”
However, Wolf’s lawyer, renowned First Amendment advocate Martin Garbus says the government isn’t really after information about the alleged crimes committed at the demonstration. According to Garbus, “This was the use of an FBI anti-terror law to get information on people they can’t get information about, such as anarchists. They know he knows nothing about the actions involving the police car.” Garbus says what federal officials really want is to know who the demonstrators are. He calls the prosecutors’ actions, an “abuse of the grand jury,” and an “expansion of the anti-terrorism investigation to other dissidents.”
For this reason, Garbus maintains that Wolf’s case is very different from that of former New York Times reporter Judith Miller, and San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada, all of whom were jailed for refusing to reveal confidential sources to a grand jury.
Miller, who served 85 days for withholding information from investigators looking into the Valerie Plame leak, is among Wolf’s supporters. In August, 2006, Miller videotaped a statement supporting Wolf outside of the prison where he was held pending a bail request. “I feel that the Josh Wolf case and my case and others like it are really going to have a chilling effect on the press,” she said, “and a chilling effect on the willingness of sources to come forward, to report instances of wrongdoing or abusive behavior by government or powerful corporations.”
Miller, Tatum and others consulted for this story insist that Wolf’s case demonstrates the need for passage of a Federal shield law, such as the proposed Free Flow of Information Act currently before the U.S. Senate. That measure, sponsored by Sen. Richard Lugar (R-Ind.) would limit prosecutors’ power to compel journalists’ disclosure of confidential or unpublished information. In the case of a federal criminal investigation, the government would be required to demonstrate that the information is essential to solving a crime and cannot be obtained any other way. But passage of the law won’t occur any time soon: consideration of the bill has been postponed after the Justice Department objected to provisions concerning the disclosure of national security information.
Tatum said, “The Circuit Courts are a big mess, in terms of the way they’ve interpreted Branzburg v. Hayes.” Indeed, the a summary of district court rulings from the First Amendment Center reveals wide variations in interpretation. Decisions from the Sixth and Seventh Circuits reject the notion of journalistic privilege, and for the Eighth Circuit, it’s an open question. The other courts recognize varying degrees of “qualified” privilege. Tatum and others insist a federal law would set a consistent standard that everyone can follow.
Wolf has said that his next step is request an appeal en banc — a hearing before the full panel of judges on the Ninth Circuit. But even his Garbus is not optimistic. In a September 29, 2006 post to Wolf’s blog, he lamented, “Unfortunately, the probabilities are that [Wolf] will wind up being the longest-jailed journalist in America.”
