Journalist Jailed for Refusing to Turn Over Protest Footage

Journalist Jailed for Refusing to Turn Over Protest Footage
By Sarah Olson
Truthout | Report

Tuesday 03 October 2006

24-year-old independent journalist Josh Wolf has gone to prison protecting press freedom. At a time when the mainstream press is increasingly cowed into silence or submission by the Bush administration, and when a member of the Associated Press Board of Directors also sits on the board of Lockheed Martin, standing up for integrity in journalism is a lot for one 24-year-old to take on.

On July 8th, 2005, Wolf filmed a San Francisco demonstration against a G8 economic summit taking place in Perthshire, Scotland. By most accounts, the demonstration went poorly. Chanting anti-capitalist slogans, masked demonstrators marched defiantly in the street, dragging news boxes into the roadway. Some set off fireworks and attempted to smash windows. As a phalanx of police moved aggressively against small groups of protesters, the demonstration reached a near-riot crescendo.

During the ensuing melee, some of which Wolf caught on film, a police officer was badly injured by a blow to the head, and a patrol car was damaged. Accounts of the damage differ – some say it was set on fire, but other reports indicate only tail light damage, or a broken windshield. The police and protester violence generated significant media attention, much of it painting the demonstrators as wild, out of control teenagers. Wolf sold his video footage to local network news.

What happened next set Wolf on an unlikely path toward history. The FBI, accompanied by San Francisco police department investigators, paid Wolf a visit a few days after the demonstration. He chatted them for a while, but when they asked for his unedited video footage, he insisted on speaking with an attorney.

In the weeks and months that followed, Wolf first retained one attorney from the National Lawyers Guild and, as his battle drew on, he acquired a veritable fleet of legal representation. A grand jury was convened in the investigation into the damaged police cruiser, and Wolf was issued a subpoena to testify and to produce his unpublished, unedited video footage. Citing California’s reporter shield law protecting journalists from revealing confidential sources or releasing unpublished material, Wolf declined to hand over his tapes.

Investigators argued – no joke – that the police cruiser was purchased, in part, with federal dollars, and this gave the federal government a reasonable interest in the case. This bumped the case over into the federal judicial system, bypassing California’s reporter shield law. While nearly every state and the District of Columbia have reporter shield laws, the federal government does not. Therefore, Wolf was legally compelled to comply with the subpoena. He refused.

Wolf’s case went on for months, until he was sent to prison on August 1st, 2006, for refusing to turn over his video out-takes of the anti-globalization protest. A little over a month later, the US 9th Circuit Court of Appeals granted Wolf bail pending an appeal. Then, another panel on the same court ruled against him, and granted the prosecution’s request to revoke bail. He was ordered back to prison, and on September 22nd, Wolf returned to federal prison in Dublin, California. Presumably, he will stay there until his additional appeals are successful or until the grand jury term expires next June.

Why is Wolf’s Case Important?

At first, many dismissed Wolf’s case. The San Francisco Chronicle wrote an editorial supporting Wolf in his struggles, but seemed to capture a prevailing uneasiness with supporting a young, politically active, anarchist blogger. “Josh Wolf is an imperfect martyr for freedom of the press. The 24-year-old freelance journalist from San Francisco makes no pretense of being fair and balanced. He is a self-proclaimed anarchist. Advocacy, not objectivity, appears to be his driving motivation.”

But Wolf’s case raises important first amendment issues regarding the role of journalists and protections for press, speech, and assembly. In the post-September 11th “war on terror,” Wolf’s case also raises important questions about precisely who and what constitutes a “terrorist,” what types of protest and speech the government is prepared to allow, and what happens to journalists reporting on speech with which the government disagrees.

Wolf argued, as have many before him, that turning over unpublished, unedited material to the grand jury would make him an arm of the state prosecution. In his legal response to the subpoena, Wolf wrote, “In seeking my testimony and unpublished material, the federal government is turning me into their de-facto investigator. My journalistic activities will be blighted, and my reporter-subject relationship of trust with alleged anarchist protestors will be eviscerated.”

To cooperate with a government prosecution in this way, the argument goes, chills the public’s willingness to speak with journalists. Introducing fear of prosecution into the public’s dealings with journalists impedes the free and fair functioning of the press. Journalists could not work if the public thought government prosecutors or censors were waiting, subpoenas a’ready, for the first sign of dissent or political subversion.

In a June 2006 blog entry, Wolf writes: “It goes against my journalistic ethics to provide the footage to the government, and I have every reason to believe that if I were to comply at that level, I would then be asked to identify various activists. It goes against every moral fiber in my body to sit back and out people for their political beliefs.”

One of the most important and least discussed elements of this argument is that if the government succeeds in forcing journalists to testify against their sources, the debate about controversial issues will be limited to only one side – the government’s. Impeding the public’s access to journalists will ensure that only the government’s version of reality will be reported. It will only impact the members of opposition parties or organizations. In essence, journalists will be reduced to reprinting government and corporate press releases, with opposing points of view utterly unrepresented. While debate about important issues should represent a panoply of voices and perspectives, the federal government’s move to turn journalists into investigators threatens the very essence of knowledge and understanding in the United States.

Is the Government Using Journalists to Intimidate “Anarchists?”

Wolf’s attorneys also argued that this grand jury is just one facet of a nation-wide investigation into dissident political voices. In a February 15th motion to quash the grand jury subpoena, Wolf’s attorney wrote, “It is readily apparent that the FBI is engaged in an illegal, full field investigation of anarchists and anarchism.” Further, they argued, Wolf had been subpoenaed in order to answer larger questions about anarchist activity, rather than narrowly defined questions about damage to a police car purchased in part with federal dollars.

To support this claim, Wolf’s defense submitted documents from an FBI investigation of three alleged members of the Earth Liberation Front in Auburn, California. The documents detail a web of surveillance and investigation that ranges from New York City to California, from Pennsylvania to Iowa to Indiana. They indicate detailed knowledge of demonstrations and convergences, surveillance of public networking web sites, and detailed knowledge of some aspects of anarchist communities.

Grand jury investigations into what the federal government now unabashedly calls eco-terrorism have been convened up and down the Pacific coast, from San Francisco to Eugene to Olympia. Dozens of activists have been subpoenaed to testify about their own activities, or those of their friends and compatriots.

In addition, examples of police or government interference in the speech rights of political protesters abound. There are numerous and egregious reports of law enforcement harassment and surveillance including the infiltration of student peace activists groups, gathering files on Americans Friends Service Committee anti-war events, interrogating animal rights activists in their homes, sending undercover agents to anti-war meetings and demonstrations, and aggressively questioning Muslims and Arabs on the basis of religion or national origin.

It would be difficult to look at the coast-to-coast examples of surveillance and harassment without concluding the government is making some degree of effort to intimidate and frighten political activists into silence. And Wolf’s attorneys contend the federal subpoena for their client’s video is just another piece of this unconstitutional level of law enforcement harassment.

What Rights, Obligations Do Journalists Have?

Some people argue reporters should be fully protected from subpoenas requiring testimony about their sources. Others that argue reporters should not have any special privileges whatsoever.

The notion of reporter’s rights is an opaque idea, very much a product of prevailing public opinion at a particular time, and subject to change as the nation’s understanding of the importance of press freedom shifts. It is widely understood that the Constitution somehow protects journalists from having to cooperate with government investigations. And for the most part, this idea is false; reporters have no federal protections, and state laws, as Wolf’s case shows, are often difficult to interpret and easily subverted.

The landmark 1972 Supreme Court ruling in Branzburg v. Hayes clearly stated that journalists are not protected from testifying in grand jury investigations. The majority opinion says: “We perceive no basis for holding that the public interest in law enforcement and ensuring effective grand jury proceedings is insufficient to override the consequential but uncertain burden on news gathering that is said to result from insisting that reporters respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”

However, in the same ruling, the court also found that news gathering was not without First Amendment protections, and that “official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news source would have no justificiation.” This somewhat ambiguous ruling has set national precedent since 1972.

In general, it appears that courts agree press freedom is important and should be protected. Before compelling a journalist to testify in front of a criminal court or a grand jury proceeding, courts seem to feel the prosecution or government investigating body should be compelled to show that they have a compelling interest in the information and can obtain the information nowhere else, and that there is probable cause to believe the journalist has information pertaining to the specific question at hand.

A Federal Shield Law?

While nearly every state in the country and the District of Columbia have journalist shield laws either enacted by state legislature or set by state judiciary, there is no federal reporter shield law. Therefore, much ado has been made lately about the Free Flow of Information Act. First introduced in 2005, the bill was debated in the final days of September. It seeks to provide a uniform, federal reporter shield law that would create a balance between reporter protections and governmental interests.

Its supporters are a bi-partisan group of Congressional lawmakers including Arlen Specter and Chris Dodd. Indiana Senator Richard Lugar, a co-sponsor, testified recently: “A cornerstone of our society is the open market of information which can be shared through ever-expanding mediums. The media serves as a conduit of information between our governments and communities across the country. Unfortunately, the free flow of information to citizens of the United States is under threat.”

The Bush administration, on the other hand, argues that passage of the Free Flow of Information Act would “cripple” the federal government’s investigation in matters related to national security. Recent amendments to the bill leave significant loop-holes for the federal government to obtain exemptions in cases related to “national security.” While the passage of this act may set an important national precedent, it’s important to also understand the limits of the act.

Is There a Crackdown on Press Freedom?

It’s useful to look at Wolf’s case in the context of the growing number of journalists facing similar subpoenas. Two San Francisco Chronicle reporters, Mark Fainaru-Wada and Lance Williams, have been issued a subpoena for their investigation into what is commonly known as the BALCO scandal, involving the alleged steroid use of San Francisco Giants baseball player Barry Bonds and other high profile athletes. Fainaru-Wada and Williams are also facing prison time, but are currently free, pending appeal. The three cases, covering substantially different territory, have served as a flashpoint for those arguing about the roll and function of the press.

But it would be a mistake to look at press freedom only in terms of jailed reporters. While it would certainly seem that jailing reporters refusing to cooperate with state or federal investigations is on the rise, there is a wide variety of evidence suggesting press freedom is under attack.

In early August, a federal judge ruled that citizens receiving and reprinting classified information pertaining to national security could be prosecuted. Judge T.S. Ellis III wrote: “… both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.” Although the case in question pertained to employees of the American Israeli Public Affairs Committee who were charged under the Espionage Act with receiving and retransmitting national defense information, many analysts fear the court’s decision could be extended to journalists receiving information like the leaked Taguba report, detailing prisoner abuse in Iraq’s Abu Ghraib prison.

The Bush administration is famously laconic with the press, failing to answer challenging questions and often retaliating against reporters who ask them. This administration has gone as far as planting faux reporters into the national press corps mix, and paying columnists to write favorable articles about pet government programs.

Further, the Bush administration has prohibited reporter access to various pieces of information that inform relevant national debates. An obvious example is the brouhaha erupting after the first photos of coffins containing American soldiers returning from Iraq were leaked to the press. But in a wide range of examples, the Bush administration has allowed the specter of “national security” to trump press freedom – and the public’s right to know.

Meanwhile, a Journalist Languishes in Prison

It’s sometimes hard for people to see the press as an important part of societal functioning, or to see members of the press as their “friends.” Journalists are known more for getting stories wrong than for getting anything right. But journalists are the conduit between corporate and governmental functioning and the general public. And because it is well established that an informed citizenry is so essential to the functioning of a democracy, it is paramount that press freedoms are protected.

Josh Wolf got a lot of support from journalists and some political officials as his case unfolded. The Society of Professional Journalists contributed to his legal defense, and its Northern California chapter named him one of three journalists of the year for his willingness to stand up for press freedom and integrity. The American Civil Liberties Union and the Reporters Committee for Freedom of the Press both filed amicus briefs in Wolf’s case. The San Francisco Board of Supervisors passed a resolution supporting Wolf’s refusal to testify before the grand jury.

At the heart of this case is not simply whether journalists hold some sort of special, privileged status. Wolf’s case instead asks whether the government can force journalists to testify about their sources, based on vague and unsubstantiated notions of national security or unproven federal interest. And deeper still, Wolf’s case is about what could happen in a nation where its citizens do not have access to an unexpurgated version of current affairs, information not supplied by government officials and approved by government censors.

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Sarah Olson is an independent journalist and radio producer based in Oakland, California. She can be reached at [email protected].