Would a shield law have helped Josh Wolf?


(Josh Wolf is a freelance journalist and anarchist. He has been jailed for refusing to turn over videotapes of a protest being investigated by a federal grand jury. Online Journalism Review has written about his case; here is a bit more from Wikipedia; and from his own site. On Friday, December 1, 2006, I ran a reminder of his incarceration. I will write about his case every Friday until he is freed. What will you do? Tom Abate, San Leandro, California; aka MiniMediaGuy).

“I can’t think of a time when investigative reporting has faced more pressures than right now,” Poynter Institute commentator Al Thompkins wrote in a recent posting that pointed to some of the investigative pieces that mass media outlets published or broadcast in 2006. In a subsequent column Poynter’s Leann Frola interviewed half-a-dozen investigative reporters. Her summary noted that “most of these journalists are in favor of a national shield law.”

I’m glad it wasn’t unanimous because I also dissent from the notion that Congress should pass a national shield law — in part because it wouldn’t have helped Josh Wolf. This young man has been jailed for more than four months on a flimsy pretext (or so I’ve argued). Yet he would likely fall outside the protection of shield law on two grounds: first that his freelance status and anarchist sympathies preclude him from being defined as a journalist; and because a federal prosecutor and a federal judge have ruled that his evidence is needed and cannot be obtained any other way – an exception that was embodied in a recently-proposed shield law.

Who is a journalist? This is not questions we want the law to define.Thousands and possibly millions of Americans are creating weblogs and other online media to document events and share their views. At what point do they become journalists? When they get a certain level of traffic? Or because they declare that their intent was to inform their fellow citizens? It seems to me that any effort to create a special set of protections for journalists will run afoul of the First Amendment’s call that “Congress shall make no law.” Not even a good or favorable law.
The current open season on subpoenas for reporters is troubling. But realize that the republic has gone 200 hundred years without shield laws. They weren’t necessary before why? Because of prosecutorial and judicial restraint. Because of legal custom. The best way to squelch these current excesses is for reporters to stand their ground, to refuse to be bullied, to bear the consequences of their refusals, and by so doing to expose the bullies for what they are.
To create a law will simply not work. First it will primarily protect those who least need the protection: journalists who are on staff at media outlets that have the means to defend themselves.

The open season on journalists in America today is only one manifestation of the post 9/11 paranoia that has precipitated a disregard for ALL civil rights: the confinements at Guantanamo; the ever-expanding scope of wiretapping; the use of presidential signing statements to effectively invalidate many laws. It is this general disregard for civil liberties that should concern mass media.

And if mass media, because it has some power to defend itself, chooses to make its own self-defense its primary cause, it will leave the rest of these attacks on civil liberties unanswered.
And for what? For the false protection of a shield law. I say false protection because I can imagine no circumstance under which such protection would be absolute, like diplomatic immunity. In a previous blog entry I looked at one bill that had been proposed in the 109th Congress. It was called the Free Flow of Information Act of 2005 and it specifies that any shield will vanish if:

(i) there are reasonable grounds to believe that a crime has occurred; and

(ii) the testimony or document sought is essential to the investigation, prosecution, or defense;

This is exactly what the judge who jailed Josh Wolf has determined. He has maintained — as I’ve written previously — that he witnessed no crime; that he merely videotaped non-violent protest. So why is he in jail? Good question. Let’s have hundreds of media outlets ask the federal judge and prosecutor.

Meanwhile I see no point in passing a shield law when it would not protect the next American citizen who may find him or herself the object of a similar excess by a federal power run amok.