NEWS MEDIA UPDATE · CALIFORNIA · Confidentiality/Privilege · Aug. 1, 2006
Freelance journalist jailed by federal judge
Aug. 1, 2006 · A federal judge today found freelance journalist Josh Wolf in contempt and ordered him jailed immediately for refusing to turn over a videotape he made of a June 2005 riot between anarchists and the San Francisco police to a federal grand jury investigating possible damage to a city police car.
U.S. District Judge William Alsup ordered Wolf jailed without bail and without allowing his sentence to be stayed pending an appeal, until he turns over his videotape or until the grand jury’s term expires next July.
“I think it’s highly unusual for him and I don’t understand why a stay was not permitted,” said Thomas Burke of Davis Wright Tremaine, who worked with the American Civil Liberties Union on a friend-of-the-court effort. “There is no urgency here to the grand jury investigation. I think he simply got tired of waiting, and I think when you have First Amendment issues at stake — which you have — that’s not the way to go. The court thought that time had run out.”
Alsup said from the bench that the decision was a “slam dunk for the government,” The Sacramento Bee reported. Despite repeated requests from Wolf’s attorney, Jose Luis Fuentes, Judge Alsup refused to even view the videotape in question to see if it contained any footage which would help the grand jury, Burke said.
“The judge said you didn’t submit in camera when you had a chance to and I’m not going to look at it now,” he said.
According to the only U.S. Supreme Court ruling regarding the reporter’s privilege, 1972’s Branzburg v. Hayes, the court should review evidence in a case to check whether there is only a remote and tenuous relationship between the grand jury investigation and the information sought from the media as well as seeing whether there is a legitimate need of law enforcement for the information.
In this case, however, Alsup decided that he would not make that determination.
“If the tape doesn’t show anything, you satisfy that criteria,” Burke said. “The court’s refusal to look at whether or not the actual content of the unpublished tape satisfied that is most unusual. His position was the grand jury gets to decide that. No. If there is bad faith, that’s when you have an exception under Branzburg. The court decides when there’s bad faith, and these variables are indicia of bad faith. The court, of course, would be the one to determine if it was bad faith or not. If that’s the case, why wouldn’t the court be obligated and not the grand jury, to look at this? That’s the court’s job.”
When Wolf, a video blogger who operates his own Web site, videotaped the riot, he likely assumed his video would be protected under California’s strong state reporter’s shield law, which protects journalists’ unpublished information but not in federal court.
The U.S. Attorney’s Office in San Francisco, led by Assistant U.S. Attorney Jeffrey Finigan, say the tape may show evidence of a protestor attempting to burn a police car. Federal prosecutors say that they are prosecuting the case since the police force receives federal money and because the FBI is investigating the anarchists.
But another reason for bringing the case in federal court could be because Wolf would have much less protection than he would under California’s law. Without a federal shield law, Wolf would have try to argue that the Constitution and previous federal cases have given him the privilege to refuse to turn over the tape — a much more difficult argument to make.
“The Josh Wolf case is the best example in my mind to date for how precarious it is for a reporter to be completely protected in state court but entirely vulnerable in a federal grand jury context,” Burke said. “It now undisputed that if he was dealing with a state grand jury prosecution he would have completely immunity from being held in contempt. In this situation it’s particularly an unusual and a bad situation because of the very tiny federal nexus between federal funds to purchase the police car and federal grand jury investigation. There’s nothing that’s stopping local authorities from prosecuting this, but to make this a ‘federal case’ has just made Mr. Wolf and all other journalists similarly situated in a much more precarious situation.”
Fuentes, Wolf’s attorney, said he would appeal and will ask the U.S. Court of Appeals in San Francisco (9th Cir.) to order bail, according to the Bee.
The Reporters Committee filed a friend-of-the-court brief on behalf of Wolf.
(In re Grand Jury Subpoena; Media Counsel: Jose Luis Fuentes, Siegel & Yee, San Francisco; amicus counsel: Thomas Burke, Davis Wright Tremaine, San Francisco (ACLU); Theodore J. Boutrous Jr., Gibson Dunn & Crutcher, Los Angeles (Reporters Committee)) — CM