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Now-freed Josh Wolf went to jail ... why?

By Gene Policinski
First Amendment Center vice president/executive director

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Freelance journalist and video blogger Josh Wolf is out of jail, and after 7½ months yet another grand jury-journalist collision has ended with no real indication of why the conflict was necessary.

Wolf, based in San Franscisco, was sent to a federal prison last year when he refused to testify, and refused to provide unpublished video, to a federal grand jury investigating violence and arrests at an anarchist protest rally in 2005. He was released yesterday after he posted the entire video on the Web, amid comparisons to Revolutionary-era pamphleteer Thomas Paine and amid real questions about to what end he was jailed in the first place.

Wolf served more time for refusing to testify — 226 days — than has any other U.S. journalist in a similar situation. Wolf had continued to refuse to talk to grand jurors, saying to do so would make him part of a police investigation rather than a journalist. He did not have to testify before his release, though he responded in writing to two questions from prosecutors, who reserved the right to subpoena him again. He says he will again, as a matter of conscience, refuse to appear before the grand jury.

Unless I’ve missed something, the outcome of the Wolf case — and the apparent non-news contained in his video of a clash between police and protesters — is yet another non-result for prosecutors in a host of cases where journalists have been jailed or threatened with jail for not disclosing sources, confidential information or other newsgathering material.

New York Times reporter Judith Miller was jailed for 85 days in 2005 for not honoring a grand jury subpoena seeking her source in a CIA leaks case. Ultimately, former vice presidential aide Lewis “Scooter” Libby was convicted of perjury, obstruction of justice and making false statements to the FBI for not disclosing to investigators his role in leaking the identity of former officer Valerie Plame. Significance of Miller’s information in convicting Libby: none.

Two San Francisco Chronicle reporters were on track to follow Wolf into prison for refusing to identify the source of leaks about federal grand jury testimony in an athletes-and-steroids investigation. But officials discovered the identity of the leak’s source without hearing from the journalists. Significance of the reporters’ confidential information in the ultimate disclosure — and punishment — of the source, an attorney: none.

Providence, R.I., television reporter Jim Taricani was placed under house arrest for four months for defying a court order to reveal who illegally gave him a secret FBI videotape showing a Providence official taking a bribe. The case was concluded by the time Taricani — who as a heart-transplant recipient was permitted to serve his sentence at home rather than in a jail cell — was incarcerated. Significance of his confidential information in terms of the bribery case at hand, and in the ultimate disclosure — and punishment — of the source, an attorney: none.

There’s a pattern here. Journalists have been jailed or threatened with jail in various high-profile cases — no small matter to them, no small matter of expense and angst for their publications and no small challenge to the First Amendment’s guarantee of a free and independent press. Apparent value of the journalists to prosecutors and the process of justice: None in the cases at hand, and minimal in terms of adding legal luster to a well-established 1972 Supreme Court decision that says journalists have no legal “shield” in federal court from being compelled to testify.

This is not to say that resisting court orders is a lightly done thing. But in terms of results, and the occasional bureaucratic bluster involved in bringing reporters to heel, Shakespeare described it best: “full of sound and fury, signifying nothing.”

For journalism, there have been some positive effects. The challenges have served to prod the profession into valuable self-examination of how and when sources should be granted confidentiality and whether bloggers and other independent and online contributors are “journalists.” And, the confrontations have breathed new life into an effort moribund for more than 30 years to gain congressional approval for a shield law at the federal level. Such statutes providing varying levels of protection in state courts now are on the books in 32 states and the District of Columbia.

Wolf presumed that grand jurors wanted him to identify protestors seen on his video. For Miller, the Chronicle reporters and Taricani, the issue was different: authorities wanted to know who leaked information. But the point made by all was the same: A free press cannot function as an independent source of information for citizens in a democracy, nor as a watchdog on government, if its inner workings are little more than extensions of prosecutorial or police investigations.

The government at every level has great resources — trained investigative staff and police, crime labs, subpoenas of records and witnesses, and the deep pockets of public funding, to name a few — that it can bring to bear in pursuit of punishing criminal activity.

Attempts to peek into reporters’ notebooks and videotapes would seem, on experience, to add little to the actual pursuit of justice.

Comment? E-mail me

Tragic stories challenge press credibility
By Gene Policinski Support for a free press declines every time there's a sensational overload or a major misstep on a big story. 10.10.06


After 226 days, freelancer Josh Wolf released from jail

In deal with prosecutors, blogger agreed to turn over uncut video, which he also posted on his Web site yesterday. 04.04.07

Internet expanding scope, meaning of ‘free press’
By Gene Policinski Bloggers, citizen journalists raise legal issues about who constitutes 'the press' — including whom a proposed federal shield law would protect from revealing confidential sources. 06.03.07

First Amendment Watch blog with Gene Policinski

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