By the end of his first week in prison, Joshua Wolf, a 24-year-old freelance video-journalist, had read the autobiography of Malcolm X. By the end of week two, he was planning a project to help give prisoners a voice from jail. Josh Wolf is determined, he told me in a collect call Tuesday, to be the prison's "most productive" inmate ever.
Mr. Wolf is the latest addition to a club whose growing membership should trouble us all. Like me, Josh was found in contempt of court in early August for refusing to provide material being sought by a Federal grand jury — in this case, unaired video footage he shot last year in San Francisco at a raucous political protest of the G-8 summit conference. During the protest by so-called anarchists, one policeman was injured and a firecracker was thrown at a police car in an alleged attempt to set it on fire.
Among the Internet's earliest video-bloggers, Josh Wolf had posted some of his footage of the protest on his Web site — joshwolf.net/blog. He had also sold it to several tv news stations. But because he refused to give investigators the unbroadcast video outtakes — which he and his lawyer say contain no photos of such attacks, but clearly identify participants at the rally — he could be jailed until next July when the grand jury expires.
Josh Wolf would not be in prison at all if the San Francisco police had not chosen — literally and figuratively — to make a Federal case of a local protest. California has a shield law that permits journalists in most instances to withhold from prosecutors such unaired or unpublished material obtained during newsgathering. But because San Francisco's police department receives money from Washington, it claimed that the attacks on the policeman and police car were, in effect, a Federal crime. And Federal law, unlike California's, does not shield journalists from such inquiries.
"Had Mr. Wolf been subpoenaed in state court, California's shield law would unquestionably protect him from divulging his unpublished material," Theodore Boutrous, Jr. wrote in a "friend of the court" brief on behalf of Mr. Wolf for the Reporters Committee for Freedom of the Press, decrying what was essentially an end-run by local law enforcement on California's own laws and regulations.
In finding Mr. Wolf in contempt of court for refusing to produce the videotape, U.S. District Judge William Alsup said the event Mr. Wolf photographed took place in public and did not involve confidential sources. He called the government's need for the information a "slam dunk" — a term that by now should engender instant skepticism.
"Every person, from the president of the United States down to you and me," the judge ruled, "has to give information to the grand jury if the grand jury wants it."
Well, not exactly. Federal and state courts exempt many people from turning over confidential material to grand juries: priests, rabbis, and other clergy may not be forced to discuss their parishioners, for instance. Doctors are exempt from talking about patients, lawyers need not testify about conversations with clients, spouses are not forced to testify against each another, and in 1996, the Supreme Court ruled that social workers, too, are exempt.
Moreover, all but one state — Wyoming — have enacted shield laws for journalists or assured such protection through court rulings. The travesty is that no such protection exists for journalists at the Federal level.
Some have argued that because Josh Wolf is a video-blogger, he is not a journalist and has no obligation to protect the identities of those who appear in his video outtakes. But Mr. Wolf works for a local tv station, albeit not as a reporter, but in an entry level job in community outreach. His video coverage is clearly newsgathering, from which he earns income. His goal, he says, is to synthesize what he sees and inform the public. If he is not an independent journalist, who is?
Josh Wolf does not have, as I did, an editor or publisher to foot his legal bills, which now total over $75,000. He wonders how he will pay his rent and hopes he won't lose his job. Nor can he get, as I did after spending 85 days in jail, a personal, written waiver from the people whom he videotaped at the rally that would enable him to cooperate. "Could I call a meeting of 300 people, some of them homeless and most of whom don't have phones, and ask them for waivers?" he said in a brief telephone interview from jail last week. "It's impossible."
Nor is Josh Wolf an isolated case. Several journalists — at the New York Times, the Washington Post, the San Francisco Chronicle, two of whose reporters were ordered Tuesday by a Federal District Judge to disclose their stories about the grand jury testimony of Barry Bonds — face the prospect of jail for refusing to cooperate in Federal investigations.
Josh Wolf and all of us need a Federal shield law to help protect the public's right to know. But for now, Josh Wolf just wants your support. His lawyer, Jose Luis Fuentes, is asking the Ninth U.S. Circuit Court of Appeals to overturn Judge Alsup's ruling. In the meantime, you can write to Josh Wolf, Prisoner No. 98005-111, at the Federal Correctional Institution, 5701 8th St., Camp-Parks, Unit J2, Dublin, CA 94568. Remember to include your own name and address on the envelope.
Ms. Miller is a reporter who served 85 days in jail last summer to protect confidential sources.