By Sarah Phelan
It looks like Josh Wolf, the jailed freelance videographer and blogger, will be stuck inside Dublin Federal Correctional Institute until July 2007.
That at least is the word from Wolf’s lead attorney Martin Garbus today, following news that the 9th Circuit has denied Wolf’s petition for a rehearing in USA v Josh Wolf.
Wolf’s legal team asked for a rehearing on the basis that the 9th Circuit court, which previously ruled that Wolf does not the right to withhold video outtakes of a July 8, 2005 anarchist protest turned violent, had however granted that privilege in the Jaffee case, when a police officer didn’t want the family of a fatal shooting victim to access notes from a series of counseling sessions that the officer in question underwent following the shooting.
Evidently, the 9th Circuit didn’t agree. Not only did it deny the petition and rule that the motion to reinstate bail is moot, it also wrote that “no further filings shall be accepted in this case.”
Sounds like Wolf will be playing lots of Scrabble and reading lots of books until next summer.
Meanwhile, Chronicle reporters Lance Williams and Mark Fainaru-Wade have yet to serve any jail time for refusing to testify before a federal grand jury that’s investigating who leaked them secret testimony of Barry Bonds, Jason Giambi and others in the Bay Area Laboratory Co-Operative scandal.
What’s ironic about this discrepancy between how the BALCO reporters and Wolf are being treated is that the feds could at least argue a connection to the BALCO case, whereas the protest that Wolf covered and which subsequently sparked their interest took place in San Francisco and should, by all rights, have been investigated locally.
Could it be that these differences are purely a case of the corporate media getting preferential treatment over freelancers? Perhaps. But questions as to whether reporters are shielded from revealing their sources date back to 1972, when US Supreme Court Justice Byron White ruled, in Branzburg v. Hayes, that reporters must answer relevant questions that are asked in a valid grand jury investigation.
Since then, judges largely ignored Branzburg, believing that it’s important to balance the First Amendment rights of journalists against the public right’s to know. But then came Bush, 9/11 and the “war on terror,” at which point First Amendment freedoms began to take a back seat.
Consider that in 2003, a federal appeals court, citing Branzburg, ordered Chicago Sun-Times and Chicago Tribune reporters to divulge recordings of interviews of a witness in a terrorism case. The same case was made in the federal investigation as to who leaked the name of CIA agent Valerie Plame, and New York Times reporter Judith Miller spent 85 days in jail in 2005 for refusing to testify in that case, which resulted perjury and obstruction of justice charges against Vice President Dick Cheney’s top aide, Lewis I. “Scooter” Libby. And this year, the US Justice Department has been investigating whether classified information was illegally leaked to the Washington Post about the secret CIA prisons in Eastern Europe, as well as who told the New York Times about President Bush’s secret plan to eavesdrop on Americans. All of which could be seen as an effort to suppress leaks to journalists.
To add to the confusion, accusations have been made in the BALCO case that it was the federal government which leaked the testimony to the Chronicle reporters. While those accusations have not been proven to date, the truth is that the feds certainly have benefited from the Chron’s revelations, given that Major League Baseball have subsequently adopted stricter steroid rules and the feds have been able to push through harsher penalties for steroid dealers.
What’s striking about the path to Josh Wolf’s incarceration is how he became the target of a federal investigation although his case had no obvious connection to the feds. So far, the feds have trotted out disturbingly vague arguments about how they should be involved because of alleged arson to a squad car that may or may not have been purchased with federal funds. But the truth is that arson was never proven and all the SFPD reports mention is a broken rear taillight, which Wolf’s mother has repeatedly offered to pay for, if that would get her son out of jail.
In fact, court filings show that the police’s real interest is finding out who attacked and seriously hurt an SFPD officer in the course of the protest—a valid concern and one that SF District Attorney Kamala Harris’ office should be handling. Instead, the feds were called in, triggering justifiable fears in Josh Wolf, who the FBI has questioned about his anarchist tendencies, that the real reason that he’s sitting in jail, is that the feds want him to release his video outtakes and identify the anarchists, who lifted up their ski masks and spoke directly into Josh’s camera, before the violence went down. And then there’s the fact that the portion of Wolf’s tape that he posted online at his blog and got picked up by several TV stations does not paint a flattering portrait of the police.
Interestingly, while Wolf has argued that journalists should not be forced into becoming investigative tools of the government, both the SFPD and the US Attorney General’s Office have voiced doubts to the Guardian as to whether Wolf is a “real” journalist, citing his direct involvement with the anarchist cause as well as the fact that he is not employed by a media outlet. These arguments should sound the alarm bells of freelancers nationwide.
Meanwhile, Wolf sits in jail, where he is only allowed 15-minute phone interviews with the media, thereby preventing live visual images and recordings of his voice to be aired across the nation, effectively blacking him out of the consciousness of all those who don’t get their news from the print media. And when the federal grand jury expires in July, there’s a chance that a new grand jury might demand that Wolf release his outtakes and testify or rot in jail for another year.
It’s a sad day for journalists, corporate and freelance, and the First Amendment.