Did the mainstream press make the right decision by backing
imprisoned Bay Area videoblogger Josh Wolf?
June 1, 2007
Adviser: Ann Grimes
Department of Communication
Josh Wolf was bummed out March 13, 2007—the night of another party he
wouldn’t be able to attend. Instead of joining many friends gathered in his honor,
Wolf, a 24-year-old with black frame glasses, an Elvis haircut, sideburns and a
dark, wispy beard, sat in his ten-by-fourteen-foot cell at the Federal Detention
Center in Dublin, Calif. Crestfallen, Wolf skipped the prison’s tuna casserole and
later snacked on burritos he made with instant rice and beans as his 205th day as
prisoner No. 98005-111 drew to a close.
Thirty-seven miles away, across the San Francisco Bay, local journalists
were in better spirits. They had gathered at Biscuits & Blues, a swish San
Francisco club, for the annual James Madison Freedom of Information Awards
given out by the Northern California Chapter of the Society of Professional
Journalists. Undoubtedly, the men of the hour were San Francisco Chronicle
reporters Mark Fainaru-Wada and Lance Williams. Less than one month earlier,
the two had dodged the threat of jail on civil contempt charges that arose from
their investigative series about a steroids distribution ring run by the Bay Area
Laboratory Co-Operative, or BALCO. The Chronicle stories centered on
confidential grand jury testimony by professional athletes about their use of
In a private room painted in muted olives, bronzes, and reds, partygoers
drank $6 draft beers and ate southern fried chicken and grilled eggplant-zucchini
jambalaya. They topped it off with blackberry-peach cobbler. After dinner, the
crowd treated Fainaru-Wada and Williams to an extended standing ovation as
the SPJ granted them special citations for resisting a federal subpoena. The two
reporters thanked their Hearst Corporation lawyers, spoke about the need for a
federal shield law, and cracked a joke about Barry Bonds, the oversized baseball
slugger at the heart of the BALCO scandal.
If Wolf’s incarceration disturbed either reporter that evening, it didn’t show.
Though Williams thought it unnecessary that Wolf had spent more than six
months in jail, he felt Wolf and government prosecutors shared the blame.
Fainaru-Wada disliked that some had linked his case to Wolf’s, which hinged on
Nevertheless, the similarities between the Chronicle reporters and Wolf’s
cases were inescapable: the same city, same First Amendment challenges, and
same Bush Administration subpoenaing them for information.
It was on Sept. 21, 2006, that U.S. District Judge Jeffrey White sentenced
Fainaru-Wada and Williams to a maximum 18-month prison term for disobeying
his order to reveal their sources for the grand jury statements. The journalists
had resisted a federal subpoena, citing a First Amendment privilege to protect
promises of confidentiality they had made to their sources. The judge and
prosecutors agreed to stay the sentence pending the outcome of the reporters’
appeal to the Ninth U.S. Circuit Court of Appeals in San Francisco. Before the
appellate court could hear the case, however, Troy Ellerman, a former defense
attorney for Victor Conte, the BALCO founder, admitted to leaking the documents
to Fainaru-Wada. On Feb. 14, 2007, prosecutors dropped the charges against
the two reporters on the heels of Ellerman’s confession.
In the prior months, Fainaru-Wada and Williams’s legal entanglement had
become a cause celebre for journalists advocating for a federal shield law that
would protect reporters from divulging sources used in confidential
newsgathering. The national press held up Fainaru-Wada and Williams as
paragons of investigative journalism and victims of an overzealous federal
government. But despite the real threat of prison, Fainaru-Wada and Williams—
with their BALCO fame, corporate lawyers, and public sympathies—never spent
a day in jail.
On the other hand, Wolf, an activist videoblogger and freelance journalist,
languished in prison, known only to a few small pockets of the blogosphere and a
muted but emerging chorus of journalists concerned by the implications of his
On Aug. 1, 2006, U.S. District Judge William Alsup, a member of the
bench in the same Northern California District that stayed Fainaru-Wada and
Williams’s sentence, found Wolf in civil contempt for refusing to comply with a
federal subpoena. The FBI, with Justice Department approval, sought outtakes
from a recording Wolf had made of an anarchist-led protest on July 8, 2005, in
San Francisco’s Mission District. The mundane demonstration against U.S.
involvement in the G-8 Summit in Glasgow, Scotland, had turned riotous as the
day faded. Demonstrators blocked the streets with newspaper boxes, detonated
paint bombs against storefronts, and clashed with city police. One officer, Peter
Shields, suffered a fractured skull in a confrontation with protestors. Wolf later
posted edited footage of the protest to his blog and sold portions to local TV
networks to balance what he considered coverage biased against demonstrators.
Under the auspices of the FBI’s Joint Terrorism Task Force, investigators
convened a grand jury to look into the suspected attempted arson of the San
Francisco police car Officer Shields drove to the protest. In court, Wolf resisted
the subpoena for his video, claiming a reporter’s privilege as an independent
filmmaker and journalist. More alarming, according to Wolf, was the
government’s demand that he testify about the rally and identify protestors and
other potential witnesses. Wolf argued that testifying before the grand jury would
chill his sources and inhibit the free flow of information. Judge Alsup rejected
these claims, and Wolf chose to go to prison rather than reveal the information.
Wolf—with his anarchist sympathies, detachment from traditional news
outlets, and reliance on pro bono attorneys and legal aid—had arrived at a
starkly different outcome than the Chronicle reporters. On the night of the SPJ
awards ceremony, his appeals exhausted, Wolf faced another three months of
incarceration until the grand jury expired in July 2007.
Not long after Fainaru-Wada and Williams received their honors, Len
Harrison, Wolf’s father, accepted SPJ’s Online Free Speech award on his son’s
behalf. As Harrison, a stocky man with unruly gray hair who looked misplaced in
a sport coat, climbed onstage, the crowd emitted another long bout of applause
and two cries of “Free Josh Wolf” arose from the San Francisco Bay Guardian
table in the rear of the room. Harrison took a moment to acknowledge the praise
and then read a two-page statement from his son that was part paean to the
promise of citizen journalism, part olive branch to mainstream reporters skeptical
of bloggers and independents.
“Though there has never been a shortage of reporters, market influences
have resulted in countless stories being neglected in favor of more popular
fodder,” Wolf’s speech read near its midpoint. “With the recent surge of self-
published and independent online journalism, the stories that are not
economically viable finally have the opportunity to see the light of day.”
His statement ended on a conciliatory tone: “The face of the media is
changing. This we know for sure. But what remains to be seen is the role
professional journalists take in developing this new landscape. Will the battle
lines be drawn with two classes of warring voices or will we work together in
solidarity to develop a massive chorus as diverse and eclectic as our society
itself? As journalists, is our commitment to an economic system or is it to the
pursuit of the free flow of information? The power is in your hands. Choose
In truth, the assembled journalists had already chosen. Four months
earlier, SPJ’s Northern California chapter honored Wolf as Journalist of the
Year—along with Fainaru-Wada and Williams. SPJ’s national board gave
$30,000 to Wolf in late August, the largest ever onetime grant issued by the
organization’s legal defense fund. Two of Wolf’s hometown papers, the
establishment Chronicle and the lefty Bay Guardian, agitated for his release on
their editorial pages. The National Press Club, the Reporters Committee for
Freedom of the Press, Reporters Without Borders, the National Writers Union—
all of these press groups and a dozen more called for his release.
Even with troubling questions about Wolf’s intimacy with his sources and
whether his work could be classified as journalism, many journalists advocating
for a federal shield law latched onto his case. They argued that Wolf’s
imprisonment demonstrated the ease with which the federal government could
override a strong state shield law like California’s. The FBI became involved in
the investigation because the alleged attempted arson affected an SFPD squad
car that had been paid for with federal funds—a thin rationale that disturbed both
traditional reporters and new media advocates.
“Josh’s case is less about press freedom than the federal government
deciding to blow up a state shield,” said Dan Gillmor, founder of the Center for
Citizen Media, which is affiliated with Harvard Law School and the UC-Berkeley
School of Journalism.
Lucy Dalglish, who has led the push for a federal shield law as the
executive director of the Reporters Committee for Freedom of the Press, also
accused the government of a “bogus federal investigation.”
As Harrison exited the stage to a final burst of applause, Wolf appeared to
be another martyr in the struggle for a federal shield law.
But was the choice to back Wolf correct? As the mainstream press renews
its calls for a federal shield law, will it help or hurt for reporters and editors to be
connected to an activist blogger like Josh Wolf? Does asking for a protection that
covers both the establishment press and non-traditional, online journalists further
complicate the push for a federal press shield?
When the press first started clamoring for a federal shield law, an unpopular
Republican commander-in-chief presided over an unpopular war, maintained
hostile relations with the media, cherished loyalty and secrecy within his
administration, and stopped at nothing to squelch critics and dissent. It was 1973,
a year before Richard Nixon would resign and a year after Branzburg v. Hayes, a
monumental case in which a divided Supreme Court ruled that reporters do not
have a First Amendment right to resist grand jury subpoenas and protect
The Branzburg ruling comprised three cases: the eponymous Paul
Branzburg, a Courier-Journal reporter in Louisville, Ky., who wrote a story about
the making of hashish that relied on two confidential sources; Paul Pappas, a
Massachusetts television reporter who attended a Black Panther meeting but
never aired a story about it; and Earl Caldwell, a New York Times reporter who
was subpoenaed for his recorded interviews and notes with Black Panther
leaders. All three refused to comply with subpoenas, arguing that revealing their
secret sources and notes would inhibit newsgathering and prevent the press from
reporting on controversial matters of public concern.
Before the Supreme Court, the reporters sought a privilege akin to
attorney-client or doctor-patient confidences, but a 5-4 majority held that
journalists enjoyed no special exemption from grand juries. The Court reasoned
that reporters must respect and yield to grand juries like any other citizen. “The
crimes of news sources are no less reprehensible and threatening to the public
interest when witnessed by a reporter than when they are not,” Justice Byron
White wrote for the majority.
Even with the slim majority, the Court’s ruling was a fractured one. In his
concurrence, Justice Louis Powell retreated from the majority opinion and
warned of the danger of foreclosing journalists from ever claiming a reporter’s
privilege. And, in dissent, Justice Potter Stewart put forth a three-pronged
balancing test that would weigh the relevancy of the information sought to the
crime under investigation, whether the government pursued alternative sources,
and a showing of “a compelling and overriding interest in the information.”
As disheartening as Branzburg was for the press, First Amendment
lawyers latched onto a toehold in Powell’s vacillating concurrence and Stewart’s
dissent. During the pro-press, post-Watergate era, they began dismantling the
majority opinion and winning protections for the press in federal district and
On the legislative side, progress was slower. Although many states
enacted shield laws modeled after Stewart’s balancing test, journalists made little
headway in Congress. In Congressional hearings on a proposed federal shield
law in the mid-70s, journalists themselves could not agree on the scope of the
law. Some favored a qualified privilege that would make exceptions for national
security or imminent personal danger, but others pushed for an absolute law. A
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few reporters opposed a federal shield law as governmental intrusion into the
Fourth Estate and a backhanded way to license journalists.
The media’s urgency faded after Nixon resigned and Attorney General
John Mitchell constrained the Justice Department’s ability to compel reporters to
testify or produce documents. Mitchell decided press subpoenas would require
attorney general approval—a higher threshold than citizen subpoenas. After a
third failed attempt at federal legislation in 1975, the issue receded from the
press’s agenda. The Justice Department’s guidelines came to be aligned with
Stewart’s Branzburg dissent: Press subpoenas were allowed only if the
information sought was central to an investigation, unavailable through
alternative sources, and related to published information. From then on, the
press and federal government operated under an unspoken détente, and
reporters rarely had to grapple with grand jury subpoenas.
“For 30 years, the press had a social contract with the government when it
came to subpoenaing reporters,” said Eve Burton, vice president and general
counsel of the Hearst Corporation, in a phone interview. “The press and the
government coexisted in the same pond, but that’s changed dramatically in
recent years. The government has overtaken that pond and barracuda-ed the
Because not all subpoenas are made public, it is difficult to track them
accurately. Still, press advocates said the federal government no longer hesitates
to subpoena reporters with the rise of the post-9/11 national security era. Indeed,
the U.S. Attorney General has approved 65 subpoenas for media employees
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since 2001, according to data collected by the Reporters Committee for Freedom
of the Press—though they admit to possible undercounts. Burton told the New
York Times in November 2006 that the Hearst Corporation alone had received 80
subpoenas in 2005 and 2006, including the one issued to discover Fainaru-Wada
and Williams’s sources. In the two years prior, she said, her company had
received “maybe four or five subpoenas,” an amount so insignificant that they
hardly bothered to count. A recent Columbia Journalism Review article reports
“nearly half of the approximately 96 federal subpoenas served on the press
during the last 15 years have been issued since 2004.”
Jerry Zremski, Washington correspondent for the Buffalo News and the
newly elected president of the National Press Club, described the government’s
growing reliance on reporters’ notes and sources as part of a culture of the
“tightening of FOIA and subpoenaing of reporters.” He said he entered his term in
January 2007 hoping to staunch the flow of government subpoenas.
“We feel very strongly that in recent years there’s been a really dangerous
trend of journalists being subpoenaed to reveal their sources,” Zremski said in a
phone interview. “It’s happening across the country.”
The pressure intensified when Judith Miller of the New York Times and
Time’s Matthew Cooper became embroiled in the Valerie Plame investigation
and federal investigators sought to uncover Fainaru-Wada and Williams’s
sources on the BALCO steroids story. Even more, the press saw its erosion of
the Branzburg opinion halted by a 2003 ruling by Judge Richard Posner, an
influential member of the Seventh U.S. Circuit Court of Appeals in Chicago.
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Posner reinforced Branzburg’s original outcome, namely that a majority of the
Supreme Court had decided that reporters enjoy no special privilege to resist
federal grand juries. With one opinion, McKevitt v. Pallasch, Posner derailed
three decades of incremental victories for press freedom. He dismissed earlier
press-friendly federal appellate court rulings because they “essentially ignore”
Branzburg or others still “audaciously declare that Branzburg actually created a
Posner’s opinion left journalists largely defenseless and unable to claim a
First Amendment reporter’s privilege in federal court proceedings. As a result,
Miller went to jail for 85 days in 2005 for refusing to say who leaked her the
identity of Plame, an undercover CIA agent revealed in a 2003 column by Robert
Novak. (Novak and other high-profile journalists avoided prison by getting
waivers that released them from their promises of confidentiality.) In her appeal
to the D.C. Circuit Court of Appeals, Miller claimed a First Amendment and
federal common law reporter’s privilege to resist Special Counsel Patrick
Fitzgerald’s leak investigation. The court, citing Branzburg, struck down both
“Each petitioner in Branzburg and each journalist before us claimed or
claims the protection of the First Amendment reporter’s privilege,” the court ruled.
“The Supreme Court in no uncertain terms rejected the existence of such a
The D.C. Circuit Court further ruled that Miller did not enjoy a federal
common law privilege: “If there is any such privilege,” the court decided, “it is not
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absolute and may be overcome by an appropriate showing.” Finally, the court
rejected her claim that Fitzgerald’s subpoena violated both her due process
rights and the Justice Department guidelines for compelled testimony.
The Supreme Court declined to hear Miller’s appeal, allowing Branzburg
to remain the controlling precedent.
On Feb. 2, 2005, two weeks before the D.C. Circuit Court rejected Miller’s
appeal, Rep. Mike Pence (R-Ind.), a onetime conservative broadcast
commentator, introduced the Free Flow of Information Act of 2005. Pence told
CJR he had first learned of the need for a national shield law when he read a
2004 New York Times editorial calling for a federal reporter’s privilege. Pence’s
bill—followed a week later in the Senate by matching legislation sponsored by
Sen. Richard Lugar, another Indiana Republican—proposed an unconditional
privilege for confidential sources and qualified protections for non-secret
In July 2005, the Senate Judiciary Committee, chaired by Sen. Arlen
Specter (R-Pa.), held its first hearings on the shield legislation, including a
revised draft by Pence and Lugar that made an exception when the information
sought was “necessary to prevent imminent and actual harm to national security.”
The concession was developed largely to allay Justice Department fears that a
federal shield law would inhibit terrorism investigations. Still, the bill never
received the Department’s backing, in part due to concerns that it would shift the
authority to issue subpoenas from the executive to judicial branch.
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Committee hearings continued into 2006, and Lugar and a bipartisan
batch of senators introduced a new bill in May 2006 as both Wolf and Fainaru-
Wada and Wiliams fought to quash their grand jury subpoenas. The Senate bill
was more qualified than previous versions, and many press and media law
associations assailed the legislation as overly deferential to the Justice
Department. The shield bills never rose above committee by the time the 109 th
Congress adjourned in December 2006.
By then, Wolf had spent nearly four months in jail. Ironically, Wolf,
identified closely with Caldwell, the New York Times reporter in Branzburg who
insinuated himself with Black Panther leaders. As Caldwell had in 1973, Wolf
tried to argue that acceding to the grand jury and providing his unedited footage
and testimony would damage his credibility with the groups that he had followed
and researched for two years. In short, he said he must remain “completely
independent of prosecutorial investigations.”
In a March 2007 letter from prison, Wolf wrote: “It is my belief that
choosing to cooperate with the government’s demands would destroy the trust
relationship I have established with my subjects and result in my being denied
access and the public being denied information about Bay Area activists.”
Wolf claims that the government went after him because he’s a vulnerable
target and it hoped to build a catalogue of dissenters with his testimony. The
federal government subpoenaed Wolf in January 2006, soon after the New York
Times sparked a national debate about the legality of an NSA warrantless
surveillance program to collect intelligence in the war on terror. With that
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backdrop, many saw Wolf’s case as another intrusion by an unrestrained federal
“There is a strong probability that the government wants these names to
compile broad-based intelligence on civil dissidents in general and anarchists in
particular, and there is something especially abhorrent about the press being
used to assist in such an affront against the First Amendment,” he wrote.
The government has said little about its ongoing grand jury investigation.
In court filings, Assistant U.S. Attorney Jeffrey Finigan stated the government
sought the information as a necessary part of its investigation into crimes
committed at the rally. Luke Macaulay, a spokesman for the U.S. Attorney’s
Office, told the San Francisco Chronicle in October 2006 that the inquiry focused
on the protest but was “not restricted to the charge of attempted arson of a police
In the mainstream press, Wolf’s case quickly became entwined with
Miller’s and the Chronicle reporters covering BALCO. Taken together, reporters
argued, the cases represented a systematic assault on the First Amendment and
led to renewed demands for a federal shield law. Wolf’s case in particular
demonstrated the need: Forty-nine states recognize a reporter’s privilege by
statutory or common law, but the absence of a federal shield law eviscerates
“Without a federal shield, it’s difficult to know the exact concrete
ramifications of granting confidentiality,” Zremksi said. “It leads to a chilling effect
on journalists and sources. The government has already shown its willingness to
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force journalists to abridge these promises. Plus, it’s a lot better for the
transparency of the federal government if sources can talk without fear of being
unmasked. A federal shield law is not just good for reporters, it’s good for
But as Zremski and his colleagues revive the federal shield law debate, a
complicating factor has arisen since the days of Branzburg—the emergence of
independent online journalism as a complement to traditional press coverage. It
was an issue anticipated by the Branzburg majority, which was reluctant to
distinguish among classes of reporters. Justice White wrote, “Sooner or later it
would be necessary to define those categories of newsmen who qualify for the
privilege, a questionable procedure in light of the traditional doctrine that liberty of
the press is the right of the lonely pamphleteer who uses carbon paper or a
mimeograph just as much as the larger metropolitan publisher who utilizes the
latest photocomposition methods.”
Jay Rosen, a New York University journalism professor who has been a
proselytizer of the citizen journalism movement, has written that its ascendance
has correlated to the “declining sovereignty” of the mainstream press and a
loosening of its stranglehold on “news, politics, and the provision of facts to the
public debate.” Rosen, who also leads NewAssignment.Net, a news site
dedicated to uniting amateur and professional reporters, contends that blogs will
not replace the traditional media, but they do demand a growing share of the
public awareness. Not only that, he says, but blogging lays waste A.J. Liebling’s
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aphorism that “freedom of the press is limited to those who own one” by
extending the power of the press to anyone with a laptop, an Internet connection,
and the desire to gather news.
It’s hard to pinpoint when this shift occurred, but most citizen journalism
practitioners say the democratization of the media arose in the aftermath of 9/11
when people tapped into free, readily-available blogging software that
empowered them to fill the gaps left by a cowed national press corps.
By now, the craft’s evangelists have a raft of examples of bloggers doing
neighborhood journalism, exposing inaccuracies in mainstream reports, and even
beating the traditional press on breaking news stories. The Greatest Hits of
Citizen Journalism include: right-wing bloggers’ demolition of Dan Rather’s
career and his erroneous CBS News report scrutinizing George W. Bush’s
National Guard service; liberal bloggers dogging onetime Senate Majority Leader
Trent Lott for his apparent reminisces about the Jim Crow era at a birthday party
for the late Sen. Strom Thurmond; Michael De Kort, a former Lockheed Martin
engineer, using YouTube to blow the whistle on security defects in Coast Guard
vessels; and the army of cameraphone-wielding correspondents who have
brought new meaning to the old “eyewitness news” television tagline by capturing
some of the first—and most haunting—images of 9/11, the Southeast Asia
tsunami, the London subway bombings, Hurricane Katrina, and, most recently,
the Virginia Tech shootings.
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David Ardia, a former Washington Post lawyer who now directs the Citizen
Media Law Project at Harvard Law School, said mainstream journalists could no
longer afford to discount the work of their untrained counterparts.
“I don’t think anyone can look at Internet journalism and say with a straight
face that it’s not something to be taken seriously,” Ardia said in a phone
Even so, he added, “we still have a ways to go to overcome the idea that
someone who blogs isn’t a journalist.” At Harvard, Ardia hopes to defeat those
perceptions by constructing a legal resource center for bloggers and selling
journalists and media lawyers on the necessity of independent online journalism.
Citizen journalists face a host of issues when trying to claim a First
Amendment protection, according to Beth Noveck, director of the Institute for
Information Law and Policy at New York Law School. Traditionally, Noveck said,
courts and lawmakers have recognized the power of the press as an institution
because of its ability to self-regulate and its importance to democracy as a
government watchdog. But can bloggers operate outside the establishment and
claim the equivalent protections as the press? If so, when is blogging determined
to be journalistic? What factors should be applied—writing style, corporate
sponsorship, audience size, reader participation, effect on public thinking and
government policy, original content?
Citizen journalists received some guidance—and another gloss of
credibility—in May 2006 in Wolf’s home state when a California appellate court
ruled that some bloggers and independent online journalists qualify for protection
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under the state’s shield law. Last amended in 2000, voters originally enshrined
the California shield law into the state constitution in 1980. It protects journalists
from revealing sources—confidential or not—and “unpublished information” when
subpoenaed. The law defines “journalist” broadly: “A publisher, editor, reporter or
other person connected with or employed upon a newspaper, magazine, or other
periodical publication, or by a press association or wire service” and, separately,
“a radio or television news reporter.” The privilege extends to anyone connected
to a traditional news outlet who gathers information for the purpose of public
In O’Grady v. Superior Court, Jason O’Grady, a Pennsylvania-based
blogger who publishes “O’Grady’s PowerPage,” a news site focused on Apple
Computer and its products, sought shield law protection when the company
subpoenaed him to discover his source for a story about a supposed new
product called Asteroid. Apple, historically secretive about products under
development, argued that the leak resulted in the illegal publication of a trade
secret. Despite Apple’s contention that O’Grady did not engage in “legitimate”
journalism and merely “posted information on a web site,” the appellate court
decided in his favor, noting that his work fell within the California shield law’s
“other periodical publication” descriptor. (The case was heard in California, home
to Apple Computer.) “There is no apparent link,” the court ruled, “between the
core purpose of the [California] law, which is to shield the gathering of news for
dissemination to the public, and the characteristic of appearing in traditional print,
on traditional paper.”
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With blogs elbowing into a crowded mediasphere and the California courts
putting their imprimatur on new forms of reporting, Wolf’s case became a
barometer for mainstream press acceptance of the citizen journalism movement.
Traditional journalists and press associations largely supported the videoblogger,
even amid questions about his prior work and its blurring of activism and
journalism. Wolf aspires to be a cinema verite filmmaker, but he also counts
himself an acolyte of the citizen journalism movement. Prior to the anti-G-8
demonstration, Wolf had covered about two dozen protests on his web site. He
produced some in a straightforward documentary style, while others appear as
an MTV-esque blend of over-amped music and hyper-fast edits—more
celebratory than journalistic.
Wolf has said he was first motivated to record political marches because
he was dismayed by the local and national press coverage of antiwar protests on
March 19, 2003, the day before the U.S. invasion of Iraq. In a letter from prison,
he wrote that he “tries to get as close as possible to the verifiable truth—not to
help one side win or lose but to inspire public discussion”—language that he
attributed to Tom Rosenstiel, director of the Pew Research Center Project for
Excellence in Journalism. It’s in that capacity that Wolf, who long posted to his
blog under the name “Insurgent,” said he documented the rally.
Rosenstiel, who with Bill Kovach co-authored “The Elements of
Journalism,” was less certain of Wolf’s journalistic credentials.
“Wolf obviously sees himself as an activist,” Rosenstiel wrote in an e-mail.
“On the other hand, we also argue [in our book] that the key is not who is or who
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isn’t a journalist but whether the work done is journalistic. In this case, he was
merely video taping. That is documentary in nature, not necessarily activist. So,
is Wolf a journalist? Probably not. But is that video journalism? Probably yes.”
Rosenstiel sympathized with Wolf, however, and wrote that “anyone can
do journalism” in an era when the web offers unlimited air time and column
inches to disseminate information.
Many working journalists also backed Wolf and saw him as worthy of the
First Amendment protections traditionally associated with the institutional press.
Christine Tatum, an assistant business editor of the Denver Post and SPJ
national president since last fall, lobbied for Wolf’s release.
“We’re not asking who is and who isn’t a journalist,” Tatum said in a phone
interview. “The key question becomes, was the person producing journalism
during the time in question?”
Though she admitted Wolf’s activism made her uneasy, Tatum had few
reservations about SPJ’s $30,000 donation to Wolf’s legal defense. In other
cases, she said, the Society rejected requests for legal and financial support by
bloggers who were not engaged in journalism, but Wolf was “actively gathering
clips and documenting events in his city.”
“We’re not going to give you money just because you’re playing around on
a web site,” Tatum added.
Zremski, the National Press Club president, added his voice to the “Free
Josh Wolf” chorus in February 2007, after the videoblogger surpassed freelance
writer Vanessa Leggett’s U.S. record for the longest incarceration on contempt
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charges by a person engaged in journalism. He came out in support of Wolf with
the unanimous approval of the club’s board.
“What Josh was doing in this case—videoing a protest for public
dissemination—qualified as journalism,” Zremski said.
With its own reporters facing jail on contempt charges, the San Francisco
Chronicle pushed for Wolf’s release on its editorial pages. One day after Wolf
was jailed in August 2006, a Chronicle editorial stated: “The really ominous
element of the government’s argument is the notion that a journalist can be
compelled to turn over raw material—be it notes or video outtakes—at the
government’s whim. If that standard can apply to Josh Wolf, it can be used
against CNN, NBC, Fox News or any independent journalist who is conducting
an investigation or trying to record a chaotic event.” All told, more than a dozen
press associations and media law groups supported his stance. (See list on page
Wolf had drawn support from many corners of the profession, but he was
still unconvinced the mainstream press would advocate for a federal shield law
that encircles both traditional reporters and “lonely pamphleteers” like himself.
On April 3, 2007, Wolf sat in a car speeding west across the San Francisco Bay
Bridge. He had made the same trip one day earlier for mediation between his
lawyers and government attorneys. Only this time, he had been freed and was en
route to a celebratory press conference on the steps of City Hall.
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In exchange for a copy of his unedited tape and his written testimony, Wolf
walked. He agreed to these terms as long as his father could first post the
original footage to joshwolf.net. Under penalty of perjury, he answered “no” to
two questions about the protest: Had he witnessed anyone throw anything at a
police car? Could he identify the person who attacked Officer Shields that night?
The accommodations allowed both Wolf and the government to claim
victory. The U.S. Attorney’s Office issued a four-line press release on the day of
Wolf’s release. The headline said it all: “JOSHUA WOLF COMPLIES WITH
GRAND JURY SUBPOENA.”
Wolf said he and his lawyers had offered to show the tape to investigators
in November 2006 if it meant that he could be excused from testimony. At his
press conference, flanked by his lawyers and supporters, Wolf vowed to fight for
an expansive federal shield law that would protect both mainstream reporters
and online journalists unattached to traditional news outlets. The way to do that,
he said, is to focus on the character of the work rather than the medium
employed or the credentials of the authors.
“It was never really about the tape, which had no evidence of a crime on
it,” Wolf said 10 days later in an interview at a coffee shop near his apartment in
the Lower Haight. “Anyone can commit journalism. That doesn’t necessarily
make you a full-time journalist. And it also doesn’t mean that journalists are
excused from the law because they’re in this sacrosanct class. It’s about the
- 24 -
Wolf’s strategy for a 21st century federal shield law reflects the thinking of
many citizen journalism advocates and the mainstream reporters who backed
him. He and his supporters say that a federal shield law that focuses on the work
product itself, rather than the person producing it, supplants the thorny blogger
versus journalist debate.
“Decouple the law from groups of people and attach it to the journalistic
actions that count,” Rosen, the NYU professor, wrote in an e-mail. “The most
important of these, of course, is gathering information on matters of public
importance for distribution to a broad public. Whoever does so is worthy of
protection, in my view. Not all bloggers are engaged in that. And when journalists
ask sobbing [Virginia Tech] college kids how they feel right now, those journalists
are not engaged in gathering information on matters of public importance for
distribution to a broad public, either.”
Dalglish welcomes journalistic bloggers into the Fourth Estate. “I don’t
care whether they’re doing journalism on paper, television, the computer, or
writing it on toilet paper and hanging it from the trees,” Dalglish said. “The
technology someone uses bears no relationship on the act of journalism.”
By not focusing on the individual, mainstream press advocates can also
be assured that the shield law will not be a licensing scheme that enables the
government to certify some reporters and ignore others. Such state intervention
into First Amendment freedoms would be anathema to most journalists.
“To some extent, the whole debate about how a shield law would define
journalists is a red herring,” said Jane Kirtley, a media law professor at the
- 25 -
University of Minnesota and Dalglish’s predecessor at the RCFP. “It’s not hard to
do as long as you focus on the function of journalism. But it’s always problematic
when you ask a government entity to start deciding who can claim the privilege.”
On May 2, 2007, less than a month after Wolf’s release, the U.S. House
and Senate introduced the Free Flow of Information Act of 2007. Rep. Mike
Pence and Sen. Richard Lugar once again sponsored the bills, and both were
joined by a bipartisan group of supporters.
In his introductory remarks, Pence pointed to Miller and Fainaru-Wada
and Wiliams as “a few names among many who have been subpoenaed for
taking a stand for the First Amendment and refusing to reveal confidential
sources.” He continued: “Compelling reporters to testify, and in particular,
compelling them to reveal the identity of their confidential sources, is a detriment
to the public interest. Without the promise of confidentiality, many important
conduits of information about our government will be shut down.”
For the first time, the proposed shield legislation would apparently extend
the reporter’s privilege to nontraditional reporters. The current bill makes no
distinction between amateur and professional journalists and would instead cover
“a person engaged in journalism.” It defines journalism as “the gathering,
preparing, collecting, photographing, recording, writing, editing, reporting, or
publishing of news and information for dissemination to the public.”
According to an analysis by Laurie Babinski, a lawyer at Baker &
Hostetler, SPJ’s law firm, the first draft of the Free Flow of Information Act of
2007 includes three other significant changes: a lowering of the federal
- 26 -
government’s standard of evidence to force a journalist to testify or relinquish
documents from “clear and convincing evidence” to a “preponderance of
evidence”; a lessening of the standard of the centrality of the information sought
to the case from “critical” to “essential”; and further protection of private medical
or financial data and trade secrets. As expected, it would also provide exceptions
for journalists to testify or turn over documents when the court determines such
information would stop “imminent and actual harm to national security” or
“imminent death or significant bodily harm.”
The national security exception resulted from Justice Department
concerns that the concealment of confidential sources could inhibit terrorism
investigations and other threats to the national welfare, according to the current
bill’s published analysis. In truth, the proposed legislation surpasses DOJ
guidelines by specifically including exceptions for national security. On many
points, in fact, it simply restates the existing Department of Justice rules on
issuing subpoenas that were adopted in the Watergate era. In doing so,
lawmakers hope to appease an executive branch that has consolidated power
under President Bush.
Burton, the Hearst Corporation general counsel, helped lawmakers draft
the proposal. She said the adherence to Justice Department guidelines would
also pacify more conservative politicians who do not want to defy the
administration or have national security concerns.
- 27 -
Even with these concessions, not all reporters are optimistic about the
bill’s passage. Zremski suggested that a federal shield law might not get in place
until 2009 when a new president takes office.
“It could pass sooner, but I would not be shocked if President Bush vetoed
this,” Zremksi said. “I look at this bill as a way to continue to build support and get
the issue out there.”
Burton gave the proposal a “50-50 chance” of survival. She said the final
version would likely eliminate protections for non-confidential information.
On the other hand, the bill enters a friendlier legislative climate than past
attempts and figures to be an easier sell in a Democratically-controlled Congress.
As of mid-May, the bill has been introduced into the House and Senate Judiciary
Committees, but lawmakers have taken no action on it. Still, many media
members are optimistic about its chances.
“I think if we’re going to get one, now’s the opportunity,” Fainaru-Wada
said in an interview. “There’s enough bipartisan support, there’s enough
understanding of the dangers to recognize it’s not a media issue, it’s a public
Wolf too has kept good on his promise to campaign for the legislation. On
the day the bills entered Congress, Wolf boarded a plane from San Francisco to
Washington D.C. to accept the Newspaper Guild’s Herbert Block Freedom Award
in honor of his defiance of a federal subpoena. While in town, he unpacked his
blazer, tie, and wool pants and spent two days on the Hill lobbying Congressional
offices for the bill’s passage.
- 28 -
In a phone interview, Wolf said he did not mind becoming the face of the
proposed shield legislation, and he hasn’t heard from reporters asking him to
drop the issue.
“I think the bill came out the way it did in significant part because of my
experiences in prison,” he said. “I don’t think there would have been such a
dramatic change in the way the covered people are defined if it weren’t for my
doing time. It encourages me that something positive will come out of all of this
that might otherwise not have happened.”
Burton was more skeptical about Wolf’s legacy. For one, she thought the
shield law would have to be limited to traditional reporters before it could win
Congressional approval. Even so, Burton said the proposed legislation would not
extend to Wolf.
“One could debate whether or not he was a journalist, but that’s really a
moot point,” Burton said. “His material would not have been covered by this
statute. First of all, he was participating in the conduct the government was
investigating. The press shield cannot be seen as a mechanism to protect people
who are participants. It’s for the reporters, the observers. And he didn’t have any
claims of confidentiality to protect. So it has less to do with whether he’s a
journalist or not and more about his activity on the night of that protest.”
For the most part, however, mainstream reporters seem unfazed about
accepting a young activist San Francisco videoblogger into their midst. With
traditional news outlets losing ground to bloggers and other new media, perhaps
- 29 -
they have realized that blogs have become a permanent fixture on the media
landscape and, as such, a medium deserving of the fullest press protections.
“At SPJ, we recognize that journalism is changing rapidly and people are
working in unconventional ways to gather information,” said Tatum, the SPJ
president. “Josh Wolf did not work in a newsroom, he didn’t have a press card,
but that doesn’t mean that we shouldn’t protect him and defend people who are
At the very least, Tatum said, Wolf’s case drew more attention to the
issue. But she added that it’s important not to abandon him now that he’s out of
“With Josh’s case, people are now more aware of a federal shield law and
why it is necessary to protect journalists,” she said. “With that said, Josh Wolf,
Judith Miller, the Chronicle reporters—none of those were perfect cases. I keep
longing for that perfect case to come along, but it’s not going to happen.”
Dalglish admitted to concerns about Wolf’s activism, but said that
mainstream journalists have no choice but to embrace bloggers.
“It’s much easier to argue in court if he weren’t self-identifying with the
people and issues he’s covering,” Dalglish said. “And it’s easier to persuade
lawmakers that you need a privilege if you can persuade them that the public
needs journalists operating independent of their sources to provide information.
But I think the situation has gotten so bad at the federal level that I’ve found
journalists are willing to agree to just about anything that will protect a large
number of them, including bloggers.”
- 30 -
Out of necessity, it appears that traditional reporters and unprofessional
bloggers have allied to fight for a federal shield law.
“In this day and age, a federal shield law is going to have to be broad,”
Zremksi said. “The media industry is changing—there are a lot more voices out
there doing journalism. The First Amendment makes no distinction between
advocacy journalism and objective journalism, the latter being a more recent
occurrence. In fact, not having it broad would complicate matters. Otherwise,
there’d be less support from the new media.”
Wolf has said he hopes to be the remembered as the last journalist forced
to jail to protect his work. In their fight for a federal shield law, it seems
mainstream journalists have excused concerns about Wolf’s activism and
embraced him as another victim of an overaggressive Justice Department.
Protections for confidential newsgathering have deteriorated to the point that the
establishment press has no choice but to embrace Wolf and his fellow
bloggers—the plankton of the media food chain. Whether that was the right
decision now rests largely in the hands of Congress.
“We’ll be certain to do the best job to get the federal shield law passed,”
Burton said. “Without it, it’s like walking around naked with no clothes on. And it
gets cold out there.”
- 31 -
American Civil Liberties Union
California Newspaper Publishers Association
Center for Media and Democracy
Committee to Protect Journalists
Contra Costa Times
First Amendment Project
National Lawyer’s Guild
National Press Club
National Press Photographers Association
National Writers Union
The Newspaper Guild/Communications Workers of America
Northern California Media Workers Guild
Reporters Committee for Freedom of the Press
Reporters Without Borders
San Francisco Chronicle
San Francisco Bay Guardian
Society of Professional Journalists
Washington Independent Writers
- 32 -
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- 33 -
Kirtley, Jane, Silha Professor of Media Ethics and Law at the School of
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ml) (Posted: Jan. 21, 2005).
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- 34 -
Scheer, Peter: “Wolf’s Case No Cause Celebre—He Had Nothing to Protect,”
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- 35 -
California Shield Law: California Constitution, Article 1, Section 2.
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