New Jailhouse Record: Josh Wolf Takes First Place With 169 Days

By Donald R. Winslow

 It’s a dubious achievement, but one that merits recognition nonetheless: Freelance journalist Josh Wolf has now spent more time in jail for contempt of court than any other journalist in recent history.

The Reporters Committee for Freedom of the Press noted yesterday that as of February 6, 2007, Wolf has racked up 169 days in a federal prison in Dublin, CA, for refusing to comply with a grand jury subpoena ordering him to testify and to turn over video outtakes that he shot of a demonstration turned violent in San Francisco in 2005.

“It is extremely unfortunate that Josh Wolf has now become the poster child for a federal shield law,” New York attorney Mickey H. Osterreicher said today. Osterreicher is a long-time NPPA member, a former photojournalist, and a specialist in First Amendment matters and issues regarding press freedoms who represents NPPA.

“The fact that the U.S. Attorney did an end-run around the California Shield Law by empanelling a federal grand jury to investigate the underlying criminal actions, rather than having the California Attorney General bring state charges, points out the inadequacy and disparity that journalists face without a strong federal shield law,” Osterreicher told News Photographer magazine. “This could conceivably happen to any photojournalist in any state where federal prosecutors decide to step in.”

In a statement published yesterday on his Web blog, Wolf wrote:

If the U.S. Attorney can compel journalists to testify about what they’ve learned through their work and to force then to turn over their unpublished materials then not only will the public be unable to trust reporters but journalists themselves will become defacto deputies and investigators – a role few of us want and one I have refused to accept. This is not a new construct, it is one that dates back to the founding of our country and is one that is guaranteed under the First Amendment of our Constitution.

Before Wolf, the honor of longest-jailed journalist was held by author Vanessa Leggett, who spent 168 days behind bars in the Federal Detention Center in Houston, TX, in 2001 for refusing to comply with a subpoena to turn over her notes, which included conversations with confidential sources, about a high-profile murder case she intended to write about. Leggett claimed a reporter’s privilege under the U.S. Constitution in court when ordered to produce her notes and was found in contempt.

More recently, the only other serious contender for the jailhouse record was New York Times reporter Judy Miller – who spent only 85 days in jail for refusing to name a source in an investigation to determine who leaked the name of CIA agent Valerie Plame.

Reporters Committee executive director Lucy A. Dalglish said in a statement yesterday: “It's extremely troubling that we have seen both records set by freelancers who were working hard to inform the public. Both of these journalists [Wolf and Leggett] feel very strongly that the public is better served when journalists are not required to become investigators for the government."

Wolf was jailed on August 1, 2006, when he initially refused to comply with a federal subpoena, but he was granted bail on August 31 pending appeal. The court denied his appeal on September 8 and Wolf was ordered back to jail. New motions for his release were denied in January.

It’s possible that Wolf could still be in prison though the summer, when the grand jury’s term expires, or even into 2008 if the jury’s term is extended. The maximum sentence for civil contempt is 18 months – but Wolf could also be charged with criminal contempt of court, which carries additional penalties, if prosecutors decide to pursue the charge.