After 226 days, Josh Wolf is released from a California prison.
From the Spring 2007 issue of The News Media & The Law, page 31.
By Elizabeth Soja
Video blogger Josh Wolf, who spent more time behind bars for contempt of court than any other American journalist, was released on April 3 after 226 days in prison.
His release came just one day after a mediation session in which Wolf struck a deal with prosecutors that would allow him to refuse to testify before a federal grand jury.
The 24-year-old self-proclaimed anarchist was first jailed for contempt of court Aug. 1 after refusing to testify and declining to turn over a videotape federal officials thought might contain footage of crimes allegedly committed at a July 2005 anarchist rally. According to prosecutors, a police officer’s skull was fractured and a San Francisco police car was damaged during the demonstrations.
Shortly after the rally, Wolf sold some of his footage to local television stations and posted an edited version of the footage on his blog. He eventually was subpoenaed to testify before a grand jury and to hand over all of his video footage. He was found in civil contempt of court when he refused.
The deal that led to his release came almost two months after Wolf became the longest-jailed American journalist for contempt of court.
The dubious record was previously held by author/journalist Vanessa Leggett, who spent 168 days in a Texas federal prison for refusing to comply with a subpoena in 2001 and 2002.
At the mediation session the day before Wolf’s release, prosecutors finally agreed to disclose the questions that they wanted to ask Wolf on the stand, according to one of Wolf’s attorneys, David Greene.
“They told us what they wanted to ask and we were able to convince them that Josh couldn’t answer,” Greene said. “We were finally given assurances that he would not be called to testify under the current subpoena.”
According to court filings, prosecutors wanted to know whether Wolf witnessed or had any knowledge of either the police officer’s injury or the damage to the police car.
In a sworn statement filed with the court just before his release, Wolf answered no to both questions.
Additionally, investigators wanted all of Wolf’s video footage from the rally, including the outtakes.
In a compromise, Wolf posted all of the footage of the rally on his blog for public viewing.
Along with the posting, he wrote that he had wanted to show the public earlier “how ridiculous and without merit this matter is, but could not publish this tape until I had received assurances from the U.S. Attorney that it would not be considered partial compliance and strengthen their claims that I might eventually be coerced.”
If mediation had failed, Wolf stood to remain in prison until the grand jury’s term expired in July thanks to a long legal battle with federal prosecutors.
After he was jailed initially, Wolf’s lawyers appealed the order of contempt and he was granted bail Aug. 31 pending a decision by a panel of appeals court judges. The panel affirmed the contempt order Sept. 8, and Wolf returned to prison later that month. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief on Wolf’s behalf.
A motion for a hearing in front of the full appeals court was denied, and Wolf stood to remain in prison until late this summer.
Because the investigation was undertaken at the federal level, Wolf could not claim the protection of California’s state reporter’s shield law. There is no federal shield law.
Attorneys for Wolf filed a new motion for his release in late January and argued that he should no longer be held in prison since “further incarceration will not compel him to comply with the subpoena.” The court disagreed and refused to grant the motion.
Wolf’s April release from custody was “without prejudice,” which means that the government could theoretically issue a new subpoena. His attorneys have said this is unlikely.
Wolf said that he did not post the tape on his blog at the outset of the investigation because he felt “the unpublished materials should be protected, and it was worth fighting for that protection.” He added that he “didn’t know the details on the likelihood of winning” and did not realize that prosecutors were “essentially chasing windmills.”
Wolf could not hand over the footage once he was held in contempt because it would “send a certain signal,” despite the fact that there was nothing on the tapes relating to the crimes that were being investigated, according to Jim Wheaton, another of Wolf’s lawyers.
“Doing anything to comply with the subpoena at that point would have suggested that the coercive confinement was working,” Wheaton said.
Additionally, Wolf and his attorneys worried that Wolf’s association with and reporting on anarchists would be hindered if he appeared before the secret grand jury, according to Wheaton.
“This whole case was about Josh being called to give testimony about a group with whom he had cultivated trust,” Wheaton said. “If he went in and testified, members of the group would have no idea what he testified about.”
Since being released, Wolf said that he has gotten positive feedback from members of the anarchist community and will likely be able to continue covering the group. However, he said that his “incarceration has chilled the actions of anarchist groups in the [San Francisco] area in general.”
According to Wolf, he plans to “stay in journalism in some means.” He said that he will “definitely continue” with his blog and will be speaking on college campuses about his situation.
Wolf said he also wants to see Congress “push forward with a federal shield law similar to the one in California,” since that law has been interpreted to apply to bloggers.