Day 179 and it’s Brother v Brother over 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. On Friday, December 1, 2006, I ran a reminder of his incarceration. I will write about his case every Friday until he is freed. Visit his site and find a way to help. Tom Abate, San Leandro, Ca; aka MiniMediaGuy).

One of my brothers, New Jersey attorney James Abate, reads this blog on occasion and has opposed this campaign, arguing in part that Josh Wolf is not a journalist. So last week I offered to concede that point if the feds would just let him go. Alas, the U.S. Attorney in San Francisco did not take the deal. But my ploy did elicit the following guest blog from my brother the attorney. Please read James Abate’s argument below; I will respond next Friday.

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Sorry, my MiniMedia Brother, but no deal! I’m going to explain why Wolf is being treated fairly and as a special bonus, at the end I will explain why he has his progressive friends to thank for being targeted in the first place. I promise, its not what you think.

I am very much a supporter of journalists and First Amendment rights and as an attorney believe whole-heartedly that there is a place for challenging an application of governmental authority and seeking judicial redress. While I think Josh has a very weak legal argument, I respected his challenge to the subpoena and seeking judicial review. But that’s where this became low hanging fruit to me. 

Josh Wolf has had his due process and not only been heard by U.S. District Judge William Alsup, a Clinton appointee with a civil rights pedigree, but by the Ninth Circuit Court of Appeals, which leans so far to the left it might as well lay down. The bottom line is no matter what the Courts say, Josh Wolf has made it clear he is going to unjustifiably defy them.

There’s a long history in this country of citizens challenging the law, from Marbury v. Madison to Bush v. Gore. But they all understood that while you have the right to be heard and in many cases a right to an appeal, at the end of the day, when the courts issue their ruling you swallow your medicine if it goes against you.  If citizens simply decided that they are going to ignore the courts, then we would have anarchy.  But then, that’s Josh Wolf’s stated goal, isn’t it?

Its pretty clear to me that the courts got it right in this case. Journalistic privilege is meant to protect private and confidential information.  In Josh Wolf’s case he recorded a scene in public that was observed by a crowd of people.  Saying that the video footage is privileged and confidential is like a lawyer going into court and screaming across to his client “DID YOU KILL HER” and the client screaming back “YES I KILLED HER.”  There  would be no privilege because it wasn’t a private and confidential conversation. Everybody in the room heard it. The only difference is that Josh Wolf videotaped it.   In cases like this, the government has the ability to obtain that information.
Notice that I’m assuming arguendo that Josh Wolf is a journalist. But that’s not a position I’d recommend progressives to take. There are an estimated twenty five million bloggers in the United States. Are all of them going to be privileged against disclosures they don’t like? Every person who gets subpoenaed will suddenly become a blogger and refuse to testify.  And what will happen then?  Well, to paraphrase Pixar’s homage to Ayn Rand, otherwise known as The Incredibles: “when every one’s [a journalist]… no one will be.”
Still think its a good idea?  Well, progressives have this habit of stretching the law to further their objectives and then acting surprised when it gets turned against them. Take for instance my MiniMedia brother’s very legitimate complaint about the overreaching of the government.  How exactly did that happen? 
Well, once upon a time, the federal government was limited to what the enumerated powers of the Constitution said it could do, stuff like regulating commerce. This made it tough for the federal government to combat racism, as that was not an enumerated power.  In a case named Heart of Atlanta Motel v. United States, the Supreme Court got too cute for its own good and said that racism affects commerce, so the federal government can act against racism. Pretty soon, the government realized that everything affects commerce and they could regulate everything.  And that’s where we are today, where we have an attack on a local police car turned into a federal crime.
Like I said, Josh Wolf has his progressive friends to thank for being subject to a federal prosecution.  One interesting note ,William O. Douglas was one one of the Supreme Court justices that decided the Heart of Atlanta case. His clerk was a young William Alsup, who now holds Josh Wolf’s freedom in his hands. Funny how things work out.
(Editor’s note: I took the liberty of adding a few links to some of the cases reference, adjusted the first paragraph to flow from my intro, but otherwise ran James’s piece intact. I’m sorry the paragraphs bunched up. I couldn’t make them stop. Chalk it up to misbehaving software. Next week I’ll reply and in the meantime I invite you thoughts.)