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Behind Bars

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  1. Protecting Sources and Materials
Josh Wolf has become the longest-jailed journalist in recent American history.

From the Winter 2007 issue of The News Media & The Law, page 14.

By Elizabeth Soja

Jailed video blogger Josh Wolf has described himself as “an artist, an activist, an anarchist and an archivist,” but some think it is that third moniker — anarchist — that has investigators so interested in keeping him behind bars.

On Feb. 6, Wolf spent his 169th day behind bars and now holds the troubling record of being the longest-jailed journalist for contempt of court in recent American history. In 2001, author/journalist Vanessa Leggett spent 168 days in a federal prison for contempt of court when she refused to comply with a subpoena.

Wolf, a 24-year-old blogger, was sent to prison in August for contempt when he refused to hand over to a grand jury a videotape he shot at a 2005 Anarchist Action demonstration in San Francisco.

The demonstration was scheduled to coincide with the Group of Eight summit in Scotland in July 2005. Notably, it occurred just one day after suicide bombers killed 52 people and injured hundreds more on London’s transportation system.

The video shows demonstrators dragging metal newspaper boxes through the streets, vandalizing a building, and yelling at a police officer, accusing him of police brutality as he attempts to arrest a protester.

During the demonstration, police officer Peter Shields’ skull was fractured and the taillight on a police car was damaged; Wolf has given a sworn statement that he did not capture either of these incidents on his video.

Wolf’s role as cameraman that night alerted investigators to his ties to the anarchism movement and his involvement with the demonstration. But some, including Wolf’s lawyers and family members, believe it is Wolf’s connections with anti-government activities — not his journalistic outtakes — that have made him a target of government scrutiny.

A modern ‘lonely pamphleteer’?

In the wake of the demonstration, Wolf sold parts of the video to a local television station, but he also used the footage to create a short movie titled “All Empires Must Fall.” He posted the film on his video blog, “The Revolution Will be Televised,” where he writes under the name “Insurgent.”

Wolf started his blog in 2005 and posts frequently — in written and video form —
about the war in Iraq and other political issues.

Because of his outspoken activism, a reasonable question is whether Wolf is really a “journalist” or simply an activist promoting a cause. Although prosecutors have not had to address the question directly in their legal filings because there is no federal shield law, it has still been a frequent topic of discussion.

Regardless of any political leanings, there is strong evidence that Wolf should be considered a journalist.

In the landmark 1972 U.S. Supreme Court case Branzburg v. Hayes, the court said that “liberty of the press is the right of the lonely pamphleteer who uses carbon paper . . . just as much as of the large metropolitan publisher.”

Today, blogs and chat rooms have all but replaced paper pamphlets and city parks as avenues for speech. The California Court of Appeals found in O’Grady v. Superior Court that bloggers should be considered journalists, and it is likely that other courts will have to address this question in the near future as well.

As for Wolf, even though he himself is absent from some of the videos on his blog, he is front and center in others, reporting and interviewing in a traditional newscast style. The blog frequently features stories and reports on new outlets for the nontraditional news media such as Current TV, a cable television station started in 2005 for independent journalists. Wolf also studied journalism in school, and his work ­–
including the tape in question — has appeared on mainstream television news stations.

Perhaps most importantly, Wolf sold parts of the tape in question to local television stations in California.

However, it would be a stretch to say that Wolf’s reporting is unbiased.

In a March 2005 post, Wolf wrote: “If we can educate the public through mass protest before the propaganda media monopy [sic] machine has its way with the ‘sheeple’ then we still stand a chance of making real change. Otherwise, we might as well just keep having our regularly scheduled protests — if only, as a means to remind ourselves that we are not alone.”

The previous month, Wolf posted a video of various flag burnings set to the tune of the national anthem; many of his video posts are critical of the Bush administration.

Terry Harper, the executive director of the Society of Professional Journalists, said Wolf’s political views did not affect the group’s decision to contribute $31,000 to Wolf’s legal defense — the largest amount the nonprofit has ever contributed.

“What Josh was doing was journalism,” Harper said. “As long as what a person is doing is journalism, we’ll stand up for them. The fact that he might be an anarchist doesn’t matter. I believe the issue did come up in discussion, but the principle at stake here is more important than his particular political beliefs.”

Luke Macaulay, spokesman for the U.S. Attorney’s Office for the Northern District of California, said that Wolf “did a good job of portraying himself as a journalist early on, but the questions about whether or not he is a journalist are increasing now. The Ninth Circuit said in their last opinion that he hadn’t produced any evidence that he would qualify under the California shield law, since he’s not employed by the news media.”

However, a California state court held in 1992 that a freelance journalist’s newsgathering activities qualified for protection under the shield law. In that case, People v. Von Villas, the reporter was not actually employed by a news media outlet, but he later sold his story to a magazine.

Likewise, although Wolf was not employed by any news media outlet, he sold his video to several local television stations. In a friend-of-the-court brief filed on Wolf’s behalf, The Reporters Committee for Freedom of the Press argued that Wolf would be a “freelance journalist” under the California shield law.

‘They’re trying to get names’

Wolf’s defense has focused less on whether he would be considered a journalist by state courts and more on the legitimacy of the underlying investigation, which lead defense attorney Martin Garbus calls an example of modern-day McCarthyism. “They’re trying to get names of people who they think are politically incorrect and opposed to the war,” he said.

In this case, Garbus said, they want the names of activists involved in the anarchism movement.

Macaulay said that the U.S. Attorney’s office “can’t discuss the grand jury’s methods or what they would ask about.” He said that neither Wolf nor his attorneys are “in a position to know with any authority what investigators are looking for.”

Liz Wolf-Spada, Wolf’s mother, believes Wolf’s role as an independent journalist has placed him at the center of a larger conflict. “The important thing for people to realize is that the tape was never the issue,” she said. “It’s not about the tape; it’s about naming names” of those involved in the 2005 rally and the anarchist movement.

Anarchism — a philosophy that is based on the idea that all hierarchical government is oppressive — has a long and sometimes troubled history in the United States. Anarchists are generally anti-capitalism and anti-war.

The San-Francisco-based group Anarchist Action sponsored the July 2005 demonstration and currently hosts a “Free Josh Wolf” link on its Web site.

Just days after the demonstration, FBI agents and officials from the Joint Anti-Terrorism Task Force visited Wolf. The officers asked for the outtakes from Wolf’s video — which he refused to turn over —
and questioned him about his involvement with the anarchist movement.

A few days later, Wolf told an FBI agent that the tape did not contain any footage showing who injured Shields or who damaged the car.

The footage that appears on Wolf’s Web site appears to corroborate his statement. The video shows a second officer running to the aid of Shields, who is injured off-camera. This, Garbus said, makes it extremely unlikely that Wolf has any footage that could identify the protesters who allegedly injured Shields or damaged the taillight on his car.

In early 2006, Wolf received a subpoena from the prosecutor, who had by that point officially enlisted the assistance of the FBI and task force. The subpoena ordered Wolf to “appear and testify before the Grand Jury” and produce “all documents, writings and recordings related to the protest . . . including but not limited to” any photographs, videos, undeveloped film, software used to edit film or photographs, and the actual cameras used.

The government’s hook

Many have questioned why the investigation was undertaken at the federal level, since damage to a city police car and the injury of a police officer appear to be state matters.

The U.S. Attorney’s office has cited a federal 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 investigate and try the case.

Until 2002, this law only extended to property owned or leased directly by the federal government. The law was expanded after the Sept. 11, 2001, terrorist attacks to include any property that is owned or leased by any entity that receives federal funding. Since the San Francisco Police Department receives some federal funding, damage to any of the department’s owned or leased property could lead to a federal investigation.

Although the statute refers specifically to fire damage, the police report detailing the condition of the police car in question states that the only damage to the car is located at the right rear taillight. In a section that says “Condition (Check all that apply),” the phrases “Apparently Drivable” and “Damaged?” are check in the affirmative; the phrase “Burned?” is not checked.

A statement issued to reporters as recently as January from the U.S. Attorney’s office said only that “there may have been an attempt to set a police car ablaze”; an earlier version of the statement said unequivocally that “an attempt was made to set a SFPD car ablaze.”

Garbus said that the investigation into the police car damage is merely the “hook that the government is using” to get the case into federal court and circumvent California’s strong state shield law that might have protected Wolf from having to hand over the tape.

Although government officials have cited the police car damage, “that’s not really what it’s all about,” Garbus said. “They’re not instituting a grand jury proceeding over $1,000 worth of damage to a car. The federal government has very broad power now, and they want names.”

Although classification and secrecy make it hard to know for sure, there is some evidence to suggest that anarchist groups are on the government’s “terrorist watch lists.”

In March 2006, FBI Supervisory Senior Resident Agent G. Charles Rasner gave a speech at the University of Texas School of Law in Austin in which he said that along with white supremacist groups and Islamic terrorist groups, anarchists were on the central Texas terrorist watch list, according to news reports.

Wolf’s attorneys have alleged that this case has brought to the forefront an “illegal, full-field investigation of anarchists and anarchism” that exemplifies the “sordid history of the federal government’s misuse of the grand jury system to harass members of reviled groups or political ideologies.”

Howard Ehrlich, a former University of Iowa professor and the editor of Social Anarchism magazine, said anarchism is a “peaceful philosophy” that is misunderstood because of the actions of just a few individuals.

“The overwhelming majority of anarchists believe in and try to act on principles of nonviolence,” he said. But Ehrlich acknowledged that “there are a handful of people who identify themselves as anarchists who believe that revolutionary change will occur by violent means.”

There is no way to know how long Wolf will remain in prison, since he could be kept behind bars until the underlying grand jury’s term expires. The term is scheduled to expire this summer, but it could be extended.

Federal law limits the time that a person can spend in prison for civil contempt of court to 18 months, but it is possible that Wolf could be charged with criminal contempt of court as well, which carries separate penalties. Civil contempt is meant to coerce a witness to testify. Criminal contempt is a punishment for not testifying.

In January, Wolf’s lawyers filed a motion to release him from prison, arguing that the punishment is clearly not going to coerce him into testifying, thus undermining the justification for civil contempt. However, the motion was ultimately unsuccessful and the judge declined to release him.

“Counting the number of days he’s spent in jail means nothing to me,” Wolf-Spada said. “I just want Josh home.”