(Josh Wolf isÂ a freelance journalist and anarchist. HeÂ has beenÂ jailed for refusing to turn over videotapes of a protest being investigated by federal authorities. Lots has been written about his case.Â On Friday,Â December 1, 2006, I ran a reminderÂ of his incarceration. I’ll doÂ the sameÂ every FridayÂ until he is freed.Â If you are a media bloggerÂ consider doing the same.Â Josh needs toÂ know that he is not forgotten. Tom Abate, San Leandro, California;Â aka MiniMediaGuy.)
Sunday Christmas Day afterÂ mistakenlyÂ thinking I had published it FridayÂ only to find thatÂ I hadÂ left it in draft mode. I also changed the posting date to Friday the 22nd. Tom)
I imagine there is little holidayÂ cheer inside the federalÂ prisonÂ where Josh Wolf is beingÂ heldÂ for not providing his unedited video of . . . a crowd. Not a crime, mind you, unless theÂ demonstration itself was a criminal undertaking as I arguedÂ last week.
SoÂ I’veÂ gotÂ two words for theÂ notion thatÂ Josh Wolf is defending the newsgathering rights of journalists (he is a freelancer who sold some footage of a demonstration to a TV station.)
Journalists, schmirnalists. Josh Wolf is defendingÂ your rightÂ toÂ use a cameraÂ to take pictures of a crowdÂ and not share them with a federal prosecutor.Â
The same theory thatÂ put JoshÂ Wolf in jailÂ could be used toÂ incarcerateÂ you. Let’s take a look at a crucial court ruling.
In September 2006 three federal appeals judges in San Francisco — O’Scannlain, Graeber and Clifton –Â ruled that Wolf had no First Amendment right to ignore the subpeona of his outtakes. That appellate rulng cleared the way for him to be jailed unless he turned over his video footage and camera gear — which he has refused to do.
In aÂ footnote theÂ appellate ruling dismissed theÂ argument that Wolf might have some journalistic privilege:
“The taped activities occurred entirely in public and did not occur in response to Wolf’s prompting, whether by questions or recording. He simply videotaped what people did in a public place. Wolf does not claim that he filmed anything confidential nor that he promised anyone anonymity or confidentiality. Therefore, the case does not raise the usual concerns in cases involving journalists.”
So Wolf is not a journalist; he is just a citizen with a camera.
NowÂ let’s imagine thatÂ Dick Public and Jane Citizen, two unrelatedÂ Americans, witness portions of a demonstration as they leave theÂ bus on their way to work.Â Dick and Jane both have picture-taking PDAs. They snap a few digi-pics andÂ post someÂ to Flickr.
A few days later aÂ federal agent contacts each of them, separately. The demonstration apparently turned ugly in parts the agent informs them. There was some violence againstÂ property with aÂ federal connection, making it a federal case. TheÂ agent asks: can we have your camera and any other pictures you may not have posted to aid our investigation?
Dick is mildly annoyed andÂ inconvenienced by this (he doesn’t understand why the feds need the actual device and is reluctant to surrenderÂ his phone and calendar, especially when he isn’t sure when they’ll be given back). But he is a bit intimidated and in any event is digusted with protestors in general.Â He surrenders his PDA and does his civic duty.
Jane is not cooperative.Â She takes an instant dislike to the fed andÂ lets on thatÂ she harborsÂ some sympathy for the protestors (let’sÂ say itÂ was an animal rightsÂ protest and someÂ idiots broke away from the main group and smashed windows at aÂ universityÂ that doesÂ federally-funded biomedical experimentsÂ on mice andÂ rats.)Â
Jane tells the fedal agentÂ she didn’t see any window smashing, nor have any pictures of these alleged act.Â She has witnessed no crime and will not give up her PDA. She feels aÂ sense of satisfaction when she sends the federal agent away empty-handed.
But is she shocked when the agent returnsÂ with a subpeona.Â The federal prosecutor leadingÂ a federal grand jury investigationÂ of the protest believes her images could be useful.Â The investigators took into considerationÂ that she is sympathetic to the protest. It heightens their suspicions that she may have useful images on her PDAÂ — and hardens theirÂ resolve to get it.
Jane is well-informed; she know that theÂ federal judgeÂ whoÂ jailedÂ Josh Wolf for contemptÂ refused to look at his videotapes to determine whether or not they contained evidence of a crime. She realizes the courts mayÂ not make an independent judgment as to whetherÂ her subpeonedÂ PDA contains evidence of a crime.
Does JaneÂ comply orÂ go toÂ jail?
Next FridayÂ I will argue that the precedents set in the Josh Wolf case putsÂ aÂ freeze not just on the First Amendment but on the entire Constitution.