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Order of contempt affirmed in freelance video blogger case

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  1. Protecting Sources and Materials
Sep. 11, 2006  ·   A panel of three judges from the U.S. Court of Appeals in San Francisco (9th…

Sep. 11, 2006  ·   A panel of three judges from the U.S. Court of Appeals in San Francisco (9th Cir.) has affirmed a lower court’s contempt order in the case of freelance journalist Josh Wolf.

The court issued the decision Friday without hearing oral arguments from either side.

Wolf, who was sent to a California prison when he refused to turn over his video footage from a 2005 San Francisco protest, was released on bail Sept. 1 after a month behind bars.

Within the next 30 days, Wolf’s lawyers are expected to file a petition for rehearing before the entire appeals court. A panel will then decide whether to grant the full court rehearing. As for Wolf, he will remain out on bail pending a response to the rehearing petition, according to Jose Luis Fuentes, one of Wolf’s lawyers.

Federal officials think Wolf’s videotape may contain footage of protesters attempting to destroy a police car, according to news reports. 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.

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. In Wolf’s case, 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 argued 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,” Dan Siegel, one of Wolf’s attorneys, said Friday before the panel ruled.

The appeals court opinion affirming the contempt order against Wolf said that “the grand jury investigation is being conducted in good faith and the district court correctly refused to do a balancing test.” Furthermore, the panel wrote, “Even if we applied a balancing test, we would still affirm.”

The order also rejected Wolf’s argument that the tape is testimonial and therefore protected under the Fifth Amendment.

“I found [the order] disconcerting because the panel judges just dismissed the constitutional issues,” Fuentes said. “They were geared towards law and order, and they brushed aside the Constitution.”

Fuentes said he was disturbed that the judges “questioned whether [Wolf] is a journalist,” referring to the order’s mention that Wolf is not employed by a publication or news organization.

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; amicus counsel: Theodore J. Boutrous Jr., Gibson Dunn & Crutcher, Los Angeles)ES

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