Josh Wolf & the New Coercive Environment
by Rick Rockwell
Josh Wolf may be out of jail, but free speech is none the stronger for it.
Wolf was released from federal custody on Tuesday, April 3, after 226 days in jail for contempt. In the end, though, the federal government won. Wolf says otherwise. But the Wolf case proves the coercive powers of the state are too much for an individual journalist to overcome.
For those who haven’t followed this case, Wolf is the blogger and videographer who set the record as the U.S. journalist jailed the longest for refusing to identify his sources to a federal grand jury. (See: “The Chilling Effect” for more background.) Federal prosecutors in California wanted Wolf to testify and to give them access to all of the video footage he shot at an anti-globalization protest in 2005. Wolf did create a documentary about the protest and he did sell footage of the protest to a television station in the San Francisco area. But Wolf did not want police and prosecutors wading through his raw footage.
All that changed this week. Wolf had his raw footage posted on the internet. He also made the footage available to Judge William Alsup. Once Wolf did that, he was released from federal custody.
Wolf claimed in a statement that he was not coerced and that by not giving the footage directly to prosecutors, he had kept his ideals intact.
Wolf is certainly brave and has nothing to prove after more than seven months in jail. Who can blame him for getting tired of being incarcerated for merely exercising his rights? The Supreme Court has ruled journalists don’t have a privilege to protect sources. However, the ethical practice of journalism dictates that journalists should avoid becoming extensions of law enforcement. Any good journalist should reject the government’s contentions that our notebooks and tapes are open to their use as investigatory tools.
However, Wolf’s explanation that posting the material online and giving the tape to a judge is not giving in to prosecutors is a convenient dodge. Indeed, prosecutors and the grand jury now have access to all of Wolf’s material, rendering his high-minded jail protest moot. This is similar to how Time magazine buckled to the pressure of special counsel Patrick Fitzgerald, who subpoenaed the notes of reporter Matt Cooper in the infamous case of I. “Scooter” Libby. Cooper has said several times he was embarrassed by how one of the biggest media corporations in the world caved. (Cooper subsequently left Time.) He was ready to go to jail on the same principle that Wolf tried to prove, but Time handed his notes over instead. And here’s the reason why that’s important: if journalists are perceived as auxiliary cops, eventually many people won’t want to be interviewed because journalists won’t really be independent arbiters of the truth.
The Libby case and the Wolf case now stand as shining examples that prosecutors can freely use coercive tactics against journalists. Wolf notes that if you review his raw tape, you’ll see the requirement that he turn over the material was the worst type of prosecutorial fishing expedition. Although Wolf is out of jail for now, the prosecutors can still call him back to testify and they may do just that as they attempt to identify anarchists who tried to set a police car on fire during their street protest.
But likely Wolf’s time in jail is done. The prosecutors made their point: journalists can’t stand up to the feds in the new legal order that is post-9/11. And those who try should get ready to suffer. So much for free speech.
(Graphic from radicalgraphics.org, which offers its material for free.)
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2 comments:
I have mixed feelings about this. On one hand, I agree that a free press needs a certain level of protection in order to ensure that journalists can't be intimidated or coerced by the government.
On the other, I think this was a lousy case to test out this theory.
If Wolf had come across whatever information the government thought he had via an interview or anonymous tip, sure, he should be shielded from prosecution. But as the court said, the protesters had no reasonable expectation of privacy. As such, I'm not sure Wolf should have been treated any differently than just some random person who happened to out that day with a video camera.
Scotus...
Thanks for dropping around. Good to see you weighing in on a legal question.
You are completely right in many ways. Yes, the protestors should have no reasonable expectation of privacy. They lose that by protesting in a public place.
However, that is not my point, and actually is a legal argument used in this case to distract from the main point. It is not the protestors and their rights at issue but Wolf's rights.
Wolf who is a journalist, despite the dispute over that issue, and he should be able to safeguard his unpublished notes or his material that was not broadcast. That is his material to safeguard if he wishes because he has a source relationship with the protestors. He was not just a witness but someone working on a documentary about the anti-globalization and anarchist movements.
Yes, the Supreme Court has said there is no privilege in these cases and the Libby and Wolf cases have further widened the state's emphasis on that point. But I disagree. The journalistic function of checking power is reduced without such privilege.
Also, my feeling about the First Amendment is that is covers everyone, not just journalists. So even "some random person" should have equal free speech rights with journalists. We don't want to go down the path that Latin America has with constitutional definitions of journalists. That actually creates a privileged class of citizens who have more rights than others. Unfortunately, we seem to be headed down that path in some ways.
But in the end, I agree that this case is muddied now, and I too have mixed feelings.
I'm glad Josh Wolf is out of jail. But unfortunately, it has set a bad precedent.
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