Joshua Wolf served the lengthiest prison term of any American journalist for refusing to comply with a subpoena
Freelance journalist Joshua Wolf was released from prison April 3, 2007, after spending 226 days incarcerated for refusing to comply with a grand jury subpoena. In August 2005, the government subpoenaed Wolf and the raw videotape he filmed at a G-8 protest the month before, and he was held in civil contempt after he refused to comply with the subpoena. Wolf was released after he posted all of his footage on his personal Web site and signed an affidavit swearing he did not see the individuals who committed the underlying crimes being investigated by the grand jury. Under the terms of his agreement with prosecutors, Wolf will not have to testify in front of the grand jury or identify any of the individuals on the videotape.
In July 2005, Wolf published portions of the videotape almost immediately after the G-8 protest on his personal Web site, www.joshwolf.net, a collective Web site indaybay.org, and sold segments to a San Francisco television station. The government subpoenaed the unaired footage from the videotape, and Wolf asked U.S. District Judge William Alsup to quash the subpoena but was denied. Wolf appealed to the U.S. Court of Appeals for the Ninth Circuit, but was denied relief there as well. Following the appellate court’s ruling, the government moved to revoke Wolf’s bail, and he entered the Dublin Federal Correctional Institute in California on Sept. 22, 2006. (See “Wolf Sets Jail Time Record for Refusing to Comply with Grand Jury Subpoena” in the Winter 2007 issue of the Silha Bulletin; “Blogger Ordered Back to Jail for Refusal to Disclose Videotapes” in the Fall 2006 issue; and “Court of Appeals Orders Freelance Journalist To Hand Over Videotape” in the Summer 2006 issue.)
According to a statement by Wolf posted on his Web site, he reached the agreement with the government securing his release after two “rather strenuous sessions of mediation.” Addressing why he chose to release the tape after spending more than seven months in jail for refusing to do so, Wolf stated his primary objection to the subpoena was that it required him to testify in front of the grand jury in addition to disclosing the videotape. Once an agreement was reached that did not require him to testify, he complied in releasing the tape. He also said that his legal team told him that releasing the videotape three months after he lost his legal appeals would indicate the time in jail was having a coercive effect on him and imply he would be willing to testify when he was not. Wolf claims that this agreement is the same as one he proposed to the government in November, but the government rejected it at that time.
On National Public Radio’s “Talk of the Nation,” Wolf said that although he still believes his refusal to disclose the tape was a battle worth fighting, he should not have been sent to jail. However, once his appeals had been exhausted and he realized he was not going to receive any legal protection for the videotape, he decided there was no further reason to stay in jail when the government was no longer requiring him to testify to the grand jury.
Alsup’s order states that after Wolf published the outtakes online, the government now had “all the materials sought in the subpoena.” Had he not been released, Wolf could have been imprisoned until the grand jury term expires in July 2007.
Because he is an independent blogger, Wolf’s status as a journalist has been called into question throughout his imprisonment. Wolf firmly asserts that he is a journalist deserving the full protection of the First Amendment, which he also contends should have shielded him from imprisonment. In his “Talk of the Nation” interview, Wolf stated “that protection should be afforded to me under the constitution as a journalist.” He also said that “bloggers that are engaging in journalist activities are today’s lowly [sic] pamphleteers” that, in his opinion, the First Amendment was written to protect.
However, some commentators such as San Francisco Chronicle columnist Debra Saunders describe him as a “blogger with an agenda and a camera,” and question why anyone refers to him as a journalist. Saunders opined in her column that “a camera and a Web site do not a journalist make, any more than shooting a criminal makes a vigilante a cop.”
In a footnote to its opinion affirming the district court’s contempt order, the Ninth Circuit concluded that the California shield law did not apply to Wolf because he produced no evidence he was connected or employed by a newspaper, magazine, periodical publication, press association, or wire service as required by the statute. However, a decision from California Court of Appeals, O’Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal. App. 2006), interpreted California’s shield law as granting protection to bloggers. (See “Appeals Court Finds that Bloggers Have Same Protection as Journalists, Newsgatherers” in the Summer 2006 issue of the Silha Bulletin.)
Wolf is also controversial because he has described himself as an “artist, an activist, an anarchist and an archivist.” In an interview with Kevin Sites of Yahoo! News in March while still in prison, Wolf stated his belief that “advocacy has a firm role within the realm of journalism” and that his number one goal is to “uncover the truth to deliver to the public.” However, Saunders refuted this contention as well, stating, “When you’re an activist cavorting with the people you’re chronicling, then you are not a journalist.”
But Wolf’s decision has gained the respect of some in the journalism community. The Los Angeles Times quoted media attorney Kelli Sager saying, “I give him a lot of credit.” Sager continued, “Without the backing of a major news organization, he went to jail to stand up for a principle that should be important for all reporters.”
In interviews given following his release, Wolf said that he plans to lobby Congress for federal shield legislation granting bloggers protection and work with other online projects.
– Scott Schraut, Silha Research Assistant