NEWS MEDIA UPDATE · NINTH CIRCUIT · Confidentiality/Privilege · Nov. 20, 2006
Freelancer Wolf could be jailed until July
Nov. 20, 2006 · Freelance journalist Josh Wolf could end up spending the next eight months in prison, after a three-judge panel last week denied a petition to have his case heard by the entire federal appeals court in San Francisco (9th Cir.).
In September, the panel of three appellate judges upheld a lower court’s contempt citation for Wolf, a videographer and blogger who was subpoenaed to turn over the outtakes from the video he shot of an anarchist protest in July 2005. The protest turned violent, with altercations between police and demonstrators.
Government officials have said they are interested in the outtakes that could identify some of the demonstrators.
Wolf refused to turn over his video or testify before the grand jury, and a federal judge cited him for contempt of court. He was imprisoned for a month before being released so the appeals court could hear the case, then sent back to prison after the judges upheld the contempt order on Sept. 8.
The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief on behalf of Wolf.
Wolf’s attorneys had asked for a rehearing before the entire appeals court, saying the panel’s ruling conflicts with a previous ruling by the Ninth Circuit recognizing a privilege to withhold the counseling notes of an officer who did not want the notes disclosed to a fatal shooting victim’s family.
The panel of judges rejected Wolf’s petition on Thursday.
Critics of the case have wondered what connection the federal government has to this case. Federal prosecutors said they have the authority to try the case because the San Francisco police department receives federal funding, and they claim a city police car was damaged in an attempted arson during the protest.
However, Martin Garbus, Wolf’s lawyer, said Wolf’s tape does not show any arson.
“We offered the judge the opportunity to look at the tape,” Garbus said. “He refused that opportunity.”
Garbus said the government not only wants the tape but wants Wolf to identify the people on the tape. Wolf attempted to meet the government halfway, Garbus said.
“We said we would give them the tape if he [Wolf] didn’t have to testify to the grand jury,” Garbus said.
There is no federal shield law. However, under California’s state shield law, Garbus believes that Wolf would be free. Wolf sold portions of the tape to a local television station and posted some to his blog.
“There is an argument that he is not employed or connected with the news media,” Garbus said, “but I believe he would be covered by that privilege.”
If Wolf continues to refuse to turn over his outtakes or to testify, he could be held in prison until the grand jury’s term expires in July. Under federal law, the maximum term of confinement for a person cited for civil contempt is 18 months.
On Tuesday, Wolf will ask the judge for a furlough to allow him to spend time with his family over the holidays. Garbus expects the motion will be denied.
Garbus also said Wolf will ask the judge to look at the tape again.
(United States v. Wolf, Media Counsel: Martin Garbus, Davis & Gilbert LLP, New York) — HS