(Josh Wolf isÂ a freelance journalist and anarchist. HeÂ has beenÂ jailedÂ for refusing to turn over videotapes of a protest being investigated by aÂ federal grand jury. Online Journalism Review has written about his case; here is a bit moreÂ from Wikipedia; andÂ from his own site.Â On Friday,Â December 1, 2006, I ran a reminderÂ of his incarceration. I will write aboutÂ his caseÂ every FridayÂ until he is freed.Â What will you do?Â 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 outletsÂ published or broadcast in 2006.Â In aÂ subsequent column Poynter’s Leann Frola interviewed half-a-dozen investigative reporters.Â 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 thatÂ Congress should pass aÂ national shield lawÂ — in part becauseÂ it wouldn’t have helped Josh Wolf.Â This young manÂ has been jailed for more than four months on a flimsyÂ pretext (or so I’ve argued). YetÂ he would likely fall outside the protection of shield law on two grounds: first that his freelance status and anarchistÂ sympathies preclude him from being defined as a journalist;Â and becauseÂ a federal prosecutor and aÂ federal judge have ruled that his evidence is needed and cannot beÂ obtained any other way –Â an exception thatÂ wasÂ embodied inÂ a recently-proposed shield law.
Who is a journalist? This isÂ not questions we want the law to define.Thousands and possibly millions of Americans areÂ creating weblogs and other online mediaÂ 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 ofÂ 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 outletsÂ that have the means to defend themselves.
TheÂ open season onÂ journalists in America todayÂ is only one manifestation ofÂ the post 9/11 paranoia that hasÂ precipitated aÂ disregard for ALL civil rights: the confinements at Guantanamo; theÂ ever-expanding scope ofÂ wiretapping; theÂ use of presidential signing statements to effectively invalidate manyÂ laws. It is this general disregard for civil liberties that should concernÂ mass media.
And ifÂ 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 whichÂ such protection would be absolute, like diplomatic immunity. In a previous blog entry I looked at one bill that hadÂ been proposed in the 109th Congress. It was called the Free Flow of Information Act of 2005Â 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.Â He has maintained — as I’ve writtenÂ 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 inÂ 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.