NEWS MEDIA UPDATE · NINTH CIRCUIT · Confidentiality/Privilege · Sep. 8, 2006
Freelancer out of jail, but not out of the woods
Sep. 8, 2006 · Independent journalist Josh Wolf may be out of jail, but the 24-year-old freelance video blogger faces an uphill legal battle ahead.
Wolf, who was sent to a California prison on Aug. 1 when he refused to turn over his video footage from a 2005 San Francisco protest, was released on bail Sept. 1.
Federal officials think Wolf’s videotape may contain footage of protesters attempting to destroy a police car. Portions of the video aired on broadcast television, but the grand jury subpoenaed Wolf and demanded that he turn over the unaired portions. Wolf was cited for contempt of court and jailed when he refused to comply.
A two-judge panel of the U.S. Circuit Court of Appeals in San Francisco (9th) has released Wolf on bail until another panel of judges can hear his appeal of the contempt order. If his appeal is unsuccessful, he could be sent back to prison until July 2007, when the term of the grand jury in the underlying case is set to expire.
Although the state of California recognizes a reporter’s privilege to withhold testimony or confidential materials from a grand jury investigation under certain circumstances, the privilege does not apply in federal courts and there is no similar federal shield law. The investigation is before a federal grand jury because the San Francisco Police Department received some federal funding to purchase police cars.
Congress is currently considering a federal shield law, but Wolf’s lawyers argue that a reporter’s privilege already exists under current law.
“Federal courts should be doing a balancing test in every case before ordering any journalist to hand over information, taking into consideration the journalist’s First Amendment rights,” said Dan Siegel, one of Wolf’s attorneys. “There’s a need for courts to determine the gravity of the government’s interest and the importance of the information requested — is there just general interest, or is there is showing that [the journalist] has withheld essential materials? The last step is determining if the information is available elsewhere.”
Wolf’s lawyers also argue that a reporter’s privilege exists under Federal Rules of Evidence, which govern what evidence can be used in court proceedings. The U.S. Supreme Court ruled in Jaffe v. Redmond (1996) that federal courts can recognize common law privileges of confidentiality if the privilege serves an important interest and is widely recognized by the states.
Currently, 49 states and the District of Columbia recognize some form of the reporter’s privilege, and 33 of those jurisdictions have shield laws.
Cases involving subpoenaed reporters such as Judith Miller, formerly of The New York Times, have led to calls for a federal shield law. Those who believe such a law should apply beyond the mainstream media have cited Wolf’s case as a reminder that freelance reporters, bloggers and alternative journalists face the same dilemma: Divulge, or go to jail.
“Independent journalists and bloggers provide a valuable service,” Siegel said. “People like [Wolf] have access to many stories that mainstream journalists do not. If they aren’t protected, the public will be denied access to that information.”
(In re Grand Jury Subpoena; Media Counsel: Jose Luis Fuentes, Dan Siegel, Siegel & Yee, San Francisco; media amicus counsel: Theodore J. Boutrous Jr., Gibson Dunn & Crutcher, Los Angeles) — ES