NEWS MEDIA UPDATE · NINTH CIRCUIT · Confidentiality/Privilege · Sep. 19, 2006
Video blogger headed back to jail
Sep. 19, 2006 · Josh Wolf, the video blogger who was jailed for a month when he refused to hand over unaired videotape of a 2005 protest to a grand jury, must report back to a California federal prison by Wednesday afternoon.
A panel of judges from the U.S. Court of Appeals in San Francisco (9th Cir.) granted prosecutors’ motion to revoke Wolf’s bail Monday.
Prosecutors filed the motion last week, six days after a different panel upheld a contempt of court order against Wolf. The prosecutors stated that the court “has now spoken; Wolf’s appeal is without merit. Wolf’s bail should be revoked.”
Wolf was jailed for contempt of court Aug. 1 after refusing to turn over a videotape federal officials think might contain footage of protesters damaging a San Francisco police car. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief on behalf of Wolf.
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 said Wolf was not protected from testifying by the First Amendment or by any other privilege. The opinion didn’t say whether Wolf would go immediately back to prison.
Wolf’s attorneys plan to file a petition to have the panel’s decision reviewed by the entire appellate court.
The matter is in federal court because the city police cars are partially funded with federal dollars. Consequently Wolf cannot claim protection under California’s state shield law that allows journalists to withhold testimony in certain situations.
In the motion to revoke bail, prosecutors emphasized that the “recalcitrant witness statute” — the federal law that allows a court to put an uncooperative witness behind bars — is ineffective unless the witness is actually imprisoned.
Prosecutors noted that the “clock is ticking on this grand jury’s term of service” and that “Wolf has an incentive to protract these proceedings as long as possible to avoid serving the sentence [that was] lawfully imposed.”
Jose Luis Fuentes, one of Wolf’s attorneys, called putting Wolf back in jail “punishment.”
“The government wanted Josh in custody because it would be coercive, but we don’t think it’s coercive since his appeal is pending,” Fuentes said.
As for his impending return to jail, Wolf said Tuesday that he is mostly “frustrated” with the decision.
“This infringes on my First Amendment rights as a journalist and my general freedom of speech rights as a person,” he said. “I can’t speak from prison. My lawyers can speak for me, and I know their voices are important, but I think in this situation, my own voice is critical.”
(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 (Reporters Committee)) — ES