Josh Wolf's second spell in the hot seat — and other penalties brought down against independent journalists documenting California's defiant student movement — raise some important questions about the freedom of the press at civil disobedience protests.
Wolf, a student at UC Berkeley's Graduate School of Journalism, faces a possible academic suspension for violating the student conduct code during a Nov. 20 student occupation of a campus lecture hall. But Wolf says he was there to document the moment as a reporter.
Brandon Jourdan, an independent journalist who was also inside the hall with Wolf, now faces his own set of misdemeanor charges after capturing footage of a March 4 student protest that broke onto a West Oakland freeway. And David Morse, a journalist and Indybay collective member who reported on a raucous Dec. 11 protest at the UC Berkeley chancellor's residence, is now fighting the seizure of his camera and a search warrant issued by UC police for his unpublished photographs — something the First Amendment Project maintains is in violation of state law.
The footage that Wolf and Jourdan took on Nov. 20 and March 4 captured police use of physical force against protesters and documented the widely publicized actions from unique perspectives. The reports were broadcast on Democracy Now!, a popular independent news program that airs nationally on satellite television stations, public access channels, and online.
The gutsy camerapersons aren't the first to face criminal charges. After nine reporters followed several hundred protesters seeking to block construction of the Black Fox Nuclear Power Plant onto private property in June 1979 and were arrested, an Oklahoma court of appeals ruled the First Amendment guaranteed them no immunity from prosecution for trespassing.
"That makes the position of a journalist very difficult, in areas where demonstrators are essentially exercising civil disobedience to make a point," notes Terry Francke, executive director of Californians Aware, a watchdog organization focused on First Amendment issues. "There's no free pass for journalists in the crowd recording what's going on. Their principled position would presumably be yes, like [protesters] risk arrest and consequences for the greater good, they'd risk the same for the sake of giving the public ... a close-up picture of what it's like to be in those circumstances."
Without that journalistic witness, "When you hear stories about what went on in the middle of a police and demonstrators' confrontation ... you'll have two irreconcilable versions, from only directly interested parties," Francke points out.
There's been no shortage recently of civil disobedience on California college campuses, where operations have been ravaged by budget cuts. The Nov. 20 occupation was staged early in the morning at Wheeler Hall, when students barricaded themselves inside to protest a 32 percent fee hike imposed by the UC Board of Regents. While most reporters gathered outside the building or flew over in helicopters, Wolf was inside, and he's the only student to claim being there in a journalistic capacity. He says he wore a police-issued press badge.
Wolf, a video journalist, enjoys a sort of celebrity status because he spent 226 days in jail after resisting a subpoena to testify before a federal grand jury. It started when he shot a film of a 2005 protest in San Francisco, which police tried to obtain because they believed it could help them pinpoint demonstrators who vandalized a police car and injured an officer. Since the case was pursued at the federal level, he was unable to invoke California's shield law protecting journalists from being compelled to reveal unpublished material.
Democracy Now! aired a lengthy report of the Nov. 20 occupation featuring footage that the two embedded reporters had captured from the interior of Wheeler, coproduced by David Martinez. Show host Amy Goodman specifically named Wolf as a co-contributor when the report aired.
Now Wolf is facing a possible seven-month suspension by the campus Center for Student Conduct, which charges him with violating the student conduct code on multiple counts. "Their perspective is that I am a student and that I am a journalist," Wolf explained. "My responsibility is no different from anyone else's in there, and therein, my punishment should be reflective of that of everyone else." Wolf said he had the backing of the journalism school, which confirmed to the Guardian that the dean wrote a letter of support for Wolf.
David Morse, 42, is a journalist who has covered hundreds of Bay Area protests on Indybay, an online news site that spotlights grassroots movements and protests. In a motion filed against UCPD, the First Amendment Project charges that Morse was arrested and had his camera seized Dec. 11 despite repeating six times that he was a journalist and displaying a press pass. "They told me, 'You have a camera, we want your camera,'<0x2009>" Morse recounted. The next morning, as reports of angry, torch-wielding students storming the chancellor's home and smashing windows made headlines, Morse was still sitting in jail in Santa Rita. "My voice as an eyewitness was completely silenced," he said. His charges were dropped, but now he is challenging the search warrant to get his memory discs back.
When the police department sought a search warrant for Morse's unpublished photos, they didn't mention that he had identified as a journalist, the FAP charges. The legal nonprofit filed a motion to quash the warrant on grounds that it violates a provision in the penal code barring search warrants for journalistic work products, invoking the state shield law.
Jourdan, meanwhile, faces five misdemeanor charges after filming the March 4 freeway protest and subsequent police response, which many have characterized as excessive. (In one clip, an officer can be seen striking an individual who doesn't appear to be resisting with a baton.) He was arrested along with two other videographers who also face criminal infractions. Footage Jourdan and Martinez captured from March 4 aired on Democracy Now!, and Jourdan's report was also featured as a lead story on the Huffington Post. Jourdan says he wore press credentials.
"It's unfair for them to file charges against me when they've dropped charges against others," Jourdan said. The Oakland Police Department confirmed to the Guardian that Jourdan had been charged with crimes such as unlawful assembly and obstruction of a thoroughfare, but did not respond to a message asking what set him apart from other reporters.
Jourdan, who has also contributed to Reuters, The New York Times, and other outlets, has managed to capture a variety of similar events on film, including Amy Goodman's arrest during protests outside the Republican National Convention in 2009. "Barely a month goes by that some lawyer isn't calling me up trying to get footage of some one getting beat up," he said. But he maintains that documenting these intense moments is crucial, not for resolving disputes, but to document these moments in history.
Reporters from mainstream television news programs toting bulky cameras were also filming on the freeway, but were allowed to leave. Guardian news intern Jobert Poblete and multimedia producer Cameron Burns with UC Berkeley's Daily Californian were arrested on the freeway too, but their charges were later dropped after state Sen. Leland Yee intervened. "Journalists are generally provided greater access to cover news stories than other members of the public," Yee wrote in a letter to the Alameda County District Attorney's Office. "Unfortunately, law enforcement did not provide such leeway in this case."
Adam Keigwin, Yee's chief of staff, said the senator's office got involved on behalf of the Guardian and the Daily Cal because he knew those publications. "We just need to know more about this," Keigwin said. "Once credentialed media is present, it's the senator's perspective that journalists should have the right to cover these things and should not be charged."
But when asked if there is a deficiency in state law since that right doesn't technically exist, Keigwin responded, "This may be something we should consider."