SAN FRANCISCO, CA – Freelance video photojournalist Josh Wolf, facing a court order to return to federal jail by 1 p.m. on Wednesday for refusing to comply with a subpoena ordering him to turn over unaired video tape of a San Francisco protest rally that turned violent in July 2005, was today granted a last-minute two-day extension of his freedom by the Ninth U.S. Circuit Court of Appeals.
Wolf, 24, now has until 1 p.m. on Friday to turn over the tapes or return to prison after his Oakland lawyer, Jose Luis Fuentes, asked the court to give his client two days to deal with personal matters. It also gives Wolf time to speak out to the public about what he sees as an attack on a free and independent press. Outside federal prison in Dublin, CA, today Wolf told reporters, "The only effect this has, of sending me to jail and not allowing things to play out, is that it silences me. To me, this does seem like an assault on the press."
Wolf has already served one month in jail, in August, for refusing to comply with the subpoena. If he returns to jail he could end up being there for nine months or more. The court can keep him in jail until the grand jury's term expires. Outside jail today Wolf said, "No unpaid journalist wants to be an unpaid investigator for law enforcement."
"The Appellant court did an end-run around their own rules and case law to punish Wolf," Fuentes told News Photographer magazine yesterday when the court order to go back to jail was announced. The Ninth Circuit three-judge panel that ordered Wolf back to prison could be overturned by the full Ninth Circuit Court of Appeals if they grant an "en banc" motion by Fuentes to have the full court hear his appeal. If the full court rejects that motion, the next option for appeal for Wolf's lawyers is the U.S. Supreme Court.
The National Press Photographers Association has joined other press freedom groups in supporting Wolf's legal defense. In August, NPPA led a protest against Wolf's jailing. "We will continue to fight for a federal shield law, in both the courts and in the legislature, and for the right for photojournalists to protect their out-takes," NPPA immediate past president Alicia Wagner Calzada said.
In addition to NPPA, the National Writers Union and Reporters Without Borders are supporting Wolf's appeal, along with the San Francisco Bay Area chapter of the National Lawyers Guild.
"It is indeed unfortunate that an overzealous federal prosecutor, enabled by an administration seeking to undermine the First Amendment, has been able to convince an ultra-conservative segment of the Ninth Circuit Court of Appeals that it is in the best interest of justice that Joshua Wolf be once again remanded to federal prison, prior to having an en banc hearing on the issue of whether he should be compelled to produce the un-broadcast portions of his videotape," New York attorney and NPPA legal advisor Mickey H. Osterreicher said. Osterreicher was a print and broadcast journalist in New York for nearly thirty years before his legal career, which now often focuses on First Amendment matters.
"It appears that the end-run play around the California shield law that worked so well in having this case brought under federal statute has now been successfully run again by having bail revoked within a very compressed time period, contrary to the existing federal rules of appellate procedure. One can only view this expedited matter as the government trying (successfully) to make an example of Joshua Wolf," Osterreicher said.
Last week Wolf lost his appeal to keep unpublished video he shot at a violent San Francisco protest rally in July 2005 out of the hands of a grand jury when a three-judge panel of the Ninth U.S. Circuit Court of Appeals ruled unanimously against him. In an unpublished finding the judges said Wolf doesn't have the grounds to resist the subpoena that calls for him to testify and for him to turn over his tapes.
Wolf had been free on bail since the end of August and started the next stop in his appeal process, to ask the entire Ninth Circuit Court to hear his appeal, instead of just three judges, in a process called an "en banc" appeal. The opportunities left for Wolf are the appeal to the entire Ninth Circuit Court, and possibly then to the U.S. Supreme Court.
In his motion to oppose the government's motion to revoke Wolf's bail, attorney Fuentes wrote to the court today, "Wolf's confinement at this time, before his petition for rehearing en banc has been considered by the court, will not serve any coercive effect. Nor will maintaining the status quo and permitting Wolf's bail to remain in effect until the court has considered his petition for rehearing en banc, indefinitely delay his confinement should his appeal be finally rejected. There is no reason to stray from the schedule set forth in the Federal Rules of Appellate Procedure."
Fuentes also wrote, "Confining Wolf before this court has considered his petition for rehearing will not coerce him to testify ... which is the sole, proper purpose of a civil contempt order, and the stated purpose of the Government's motion to revoke bail." "Until the Court delivers a decision on his petition for rehearing, Wolf will not do anything to moot that petition."
"Revoking bail will be punitive and prejudice Wolf," Fuentes told the court today in his motion. "Revoking Wolf's bail will be severely prejudicial without bestowing any cognizable benefit on the Government. In addition, Wolf's ability to speak publicly about the legal and journalistic issues in which he has become entwined will be curtailed (if he's back in jail)."
The subpoena calling for Wolf to turn over his unpublished video was issued by a federal grand jury investigating an alleged attempt by protesters to burn a San Francisco police car during an anarchist-led rally in July 2005 that turned violent during a protest march in San Francisco against an economic summit that was taking place in Scotland.
The Ninth U.S. Circuit Court of Appeals three-judge panel issued a memorandum decision on September 8 in the Wolf case. The Appeals court agreed "with the lower district court, that the government met its burden of proving by clear and convincing evidence that: (1) there was an authorized request for information by the grand jury, (2) the information sought was relevant to the proceeding, (3) the information sought was not already in the government's possession, and (4) Wolf failed to comply with the request.”
In affirming the lower court’s decision to find Wolf in contempt the Ninth U.S. Circuit Court of Appeals stated, “Our decision today does not alter the long-established obligation of a reporter to comply with grand jury subpoenas.”
While Wolf’s attorneys contemplate an en banc appeal to the full Ninth U.S. Circuit Court of Appeals, U.S. Attorney Kevin V. Ryan already filed a motion on September 14, 2006, requesting that the Court issue an order revoking Wolf’s bail and ordering him confined or, alternatively, remanding the matter for the district court to do so.
The three-judge panel also found that in the seminal case of this nature that “the Supreme Court has declined to interpret the First Amendment to ‘grant newsmen a testimonial privilege that other citizens do not enjoy.’ [Branzburg v. Hayes, 408 U.S 665, 690 (1972).]” That court held, “the Constitution does not, as it never has, exempt the newsman from performing the citizen's normal duty of appearing and furnishing information relevant to the grand jury’s task.” (Id. at 691). “Reporters have no First Amendment right to refuse to answer ‘relevant and material questions asked during a good-faith grand jury investigation.’” (Id. at 708).
Previously interpreting Branzburg, this same California Appeals court held that “a limited balancing of First Amendment interests may be conducted only ‘where a grand jury inquiry is not conducted in good faith, or where the inquiry does not involve a legitimate need of law enforcement, or has only a remote and tenuous relationship to the subject of the investigation.’” [Scarce v United States, 5 F.3d 397, 401 (9th Cir. 1993)]. This court found that the lower district court in Wolf “specifically found that none of the concerns articulated in Scarce are present in this case.”
The court also rejected Wolf’s argument “that the grand jury is being conducted in bad faith because he thinks that the burning of a police car is not a federal concern.” They believed that “the issue here is not whether prosecution of a given crime is in the government’s interest.”
Is Wolf A Journalist?
As to the issue of whether Wolf is or is not a journalist, it is interesting to read in a footnote in the decision the following: “Wolf claims that the California Shield Law would protect him if this subpoena had been issued by a grand jury in California state court. The California Shield Law protects 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.’” [California Constitution Article I, § 2(b)]. “Wolf produced no evidence this videotape was made while he was so connected or employed,” the court said. In this statement they seem to be distinguishing between a stringer, or freelancer, or even someone making a sale of spot news film from someone who is “so connected or employed” with a news organization for the purposes of protection under the California shield law.
In a final blow to all of Wolf’s arguments, the California Appeals Court rejected the premise that “[t]he district court’s order will have a chilling effect on Wolf’s ability to gather news because groups will perceive him as being an investigative arm of the law. This argument has also been rejected by the Supreme Court [See Branzburg, 408 U.S. at 699-200 (“From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished, The existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press.”).”]