Limited protection

State safeguards for reporters could dwindle if federal prosecutors follow the lead of those in the case of jailed freelancer Josh Wolf.

From the Fall 2006 issue of The News Media & The Law, page 14.

By Elizabeth Soja

Freelance journalist Josh Wolf was videotaping an anarchist protest in San Francisco in July 2005 when a police officer was injured and a city police car was damaged.

He never expected that tape to land him in jail.

Wolf posted some of the footage of the protest on his Web site and sold parts of the video to a local television station.

Earlier this year, a federal grand jury subpoenaed Wolf and ordered him to turn over his unaired footage. When he refused, he was cited for contempt of court and jailed for a month. A panel of appellate judges upheld the citation on Sept. 8 and Wolf was ordered back to jail.

Wolf’s attorneys and media groups say federal prosecutors are stretching a federal law to wrest jurisdiction from a state court, where Wolf would likely be protected under California’s strong shield law.

The basis for the federal investigation in this case is a statute says that if property owned by the U.S. government or by any organization that receives federal funding is damaged by “fire or explosive,” federal authorities have the right to try the case in federal court.

Until 2002, this law only extended to property owned or leased by the federal government. The law was expanded after the Sept. 11, 2001, terrorist attacks to include property owned or leased by any entity that receives any federal funding.

Dan Siegel, one of Wolf’s attorneys, believes the federal law in question is aimed at terrorists and that applying it to this case is “a complete and total sham.”

“Let’s assume that a member of al-Qaida blew up the city hall in San Francisco with an explosive device,” Siegel said. “Few people would object to the federal government investigating that under this law.”

According to Siegel, federal investigators are only involved because they want information on anarchist groups such as the one involved with the protest in question, an anti-government group called Anarchist Action.

Siegel said subpoenaing Wolf is a way to carry out an investigation without running into California’s shield law, which allows reporters to refuse to testify or hand over newsgathering materials including outtakes in court. Since there is no federal shield law or reporter’s privilege, federal authorities say Wolf has no right to withhold the tape.

‘An extraordinary leap’

Because of the change in the federal law, prosecutors don’t have to show that federal money was used specifically to buy the car in question. And according to Wolf and his attorneys, the only actual damage to the police car in question was a broken taillight. The car showed no physical evidence of fire damage, they said, and the only explosives at the protest were firecrackers.

Theodore Boutrous, who wrote a friend-of-the-court brief on behalf of Wolf for The Reporters Committee for Freedom of the Press, called the federal statute “the flimsiest basis for federal jurisdiction that I could ever imagine.”

“Technically what the federal prosecutors are claiming is covered by the statute on its face,” he said. “But given the facts … it seems like an extraordinary leap.”

In their brief to the appeals court, federal prosecutors wrote that “Wolf’s claim that the incident involved a ‘firecracker,’ and the ACLU’s claim that the government ‘has made no showing that any police car was … attempted to be burned’ is clearly belied by the police reports.”

However, the only reference to physical damage in the government’s brief is a statement that “the protestors broke a taillight and ignited pyrotechnic devices beneath the car.” The brief does not state the car was actually damaged by fire or by a “pyrotechnic device.”

Department of Justice spokesman Luke Macaulay said the investigation is based on the federal arson statute, but the grand jury is “not restricted to the charge of attempted arson of a police vehicle” and is “entitled as a matter of law to all of the evidence in Wolf’s possession related to the demonstration.”

Macaulay said the “office did not initiate a federal investigation in order to circumvent the California state shield laws.”

When asked whether any other federal investigation in the northern California district had been based on the statute in question, Macaulay said he could not answer.

State protection

California’s state shield law protects all journalists “connected with or employed by a radio or television station” and their unpublished notes and outtakes. It applies to information intended “

But would Wolf have been protected under the state law in the first place?

Federal prosecutors say no. In their brief, they wrote that the state shield law “protects a ‘publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication … .’ Wolf produced no evidence this video was made while he was so connected or employed.”

Wolf and his attorneys disagree. In fact, California courts have expressly interpreted the shield law to include freelance journalists. In the 1992 case People v. Von Villas, a state appeals court found that the shield law applied to a freelance journalist who was not employed by media outlet during the newsgathering stage but who later sold his story to a publication.

Although Wolf does not work for a media organization, he sold video of the protest to a local television station. He studied journalism in school and at one point produced a public access television show.

Wolf also started a blog last year titled “The Revolution Will Be Televised,” where he posts video reports under the alias “Insurgent.”

“I would have definitely been protected under the state shield law,” Wolf said before he returned to jail Sept. 22. “This just shows the federal government’s intent to circumvent state protections to obtain information from journalists and information about civil dissent.”

Wolf plans to ask to have his case heard by the entire appeals court. If he is unsuccessful, he could remain in prison until the grand jury’s term expires, which could be as late as next summer.

Ramifications for reporters

Naturally, Wolf’s case has left some journalists and lawyers wondering how much state shield laws matter, since predicting what actions might be subject to federal prosecution can be nearly impossible.

Christine Tatum, president of the Society for Professional Journalists, worries the case could have adverse consequences for journalists. Her organization has donated more than $30,000 to Wolf’s legal defense fund, the highest grant in the nonprofit’s history.

“What you have here is the federal authorities sweeping in and flagrantly disregarding state laws,” she said. “So much has happened since 9/11 with an eye on global terrorism. There has been a lot of knee-jerk reaction, and people are not thinking logically. They are just acting and not considering the ramifications.”

George Freeman, vice president and assistant general counsel at The New York Times, said that although reporters must remain aware of the possibility that state shield laws won’t protect them, they simply don’t have the time to dwell on the issue.

“We can’t expect, nor should we expect, journalists to completely understand the total lack of uniformity and the somewhat bizarre situation of state and federal courts,” Freeman said. “Reporters might think they have protection because of their state’s law, but you never know when a case will make it into a federal court. The trick is to keep on getting stories that public needs to know while minimizing the amount of danger journalists put themselves in.”

A federal solution?

Proponents of a strong federal shield law, including former Solicitor General Theodore Olson, view reporters’ confusion about state and federal protection as a key reason to adopt a federal law.

At a Senate Judiciary Committee hearing on Sept. 20, Olson testified that because of the blurred lines between state and federal law, journalists “cannot foresee where or when they may be summoned into court for questioning regarding a particular story.”

Olson said that this confusion “leaves reporters and sources wondering whether” subpoenas are “simply the first step down the inevitable path to disclosure or the jailhouse doors.”

If more federal officials follow the example of the Wolf case, Boutrous said, they could erode the protection offered by state shield laws.

“There’s a real danger that federal prosecutors are going to try and get involved in cases they otherwise wouldn’t in order to evade state shield laws,” he said. “A state privilege means nothing if it can be so easily invalidated.”