(Josh Wolf is a freelance journalist and anarchist. He has been jailed for refusing to turn over videotapes of a protest being investigated by federal authorities. Lots has been written about his case. On Friday, December 1, 2006, I ran a reminder of his incarceration. I’ll do the same every Friday until he is freed. If you are a media blogger consider doing the same. Josh needs to know that he is not forgotten. Tom Abate, San Leandro, California; aka MiniMediaGuy.)

(Published Sunday Christmas Day after mistakenly thinking I had published it Friday only to find that I had left it in draft mode. I also changed the posting date to Friday the 22nd. Tom)

I imagine there is little holiday cheer inside the federal prison where Josh Wolf is being held for not providing his unedited video of . . . a crowd. Not a crime, mind you, unless the demonstration itself was a criminal undertaking as I argued last week.

So I’ve got two words for the notion that 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 defending your right to use a camera to take pictures of a crowd and not share them with a federal prosecutor. 

The same theory that put Josh Wolf in jail could be used to incarcerate 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 – 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 a footnote the appellate ruling dismissed the 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.

Now let’s imagine that Dick Public and Jane Citizen, two unrelated Americans, witness portions of a demonstration as they leave the bus on their way to work. Dick and Jane both have picture-taking PDAs. They snap a few digi-pics and post some to Flickr.

A few days later a federal agent contacts each of them, separately. The demonstration apparently turned ugly in parts the agent informs them. There was some violence against  property with a federal connection, making it a federal case. The agent asks: can we have your camera and any other pictures you may not have posted to aid our investigation?

Dick is mildly annoyed and inconvenienced by this (he doesn’t understand why the feds need the actual device and is reluctant to surrender 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. He surrenders his PDA and does his civic duty.

Jane is not cooperative. She takes an instant dislike to the fed and lets on that she harbors some sympathy for the protestors (let’s say it was an animal rights protest and some idiots broke away from the main group and smashed windows at a university that does federally-funded biomedical experiments on mice and rats.) 

Jane tells the fedal agent she didn’t see any window smashing, nor have any pictures of these alleged act. She has witnessed no crime and will not give up her PDA. She feels a sense of satisfaction when she sends the federal agent away empty-handed.

But is she shocked when the agent returns with a subpeona. The federal prosecutor leading a federal grand jury investigation of the protest believes her images could be useful. The investigators took into consideration that she is sympathetic to the protest. It heightens their suspicions that she may have useful images on her PDA — and hardens their resolve to get it.

Jane is well-informed; she know that the federal judge who jailed Josh Wolf for contempt refused to look at his videotapes to determine whether or not they contained evidence of a crime. She realizes the courts may not make an independent judgment as to whether her subpeoned PDA contains evidence of a crime.

Does Jane comply or go to jail?

Next Friday I will argue that the precedents set in the Josh Wolf case puts a freeze not just on the First Amendment but on the entire Constitution.