DUBLIN, CA– Freelance journalist and blogger Josh Wolf was released on bail from a federal correctional facility in California today after a two-judge panel for the 9th Circuit Court of Appeals found Thursday that Wolf’s appeal of a grand jury subpoena to turn over video tapes was neither frivolous nor intended to delay court proceedings.
Wolf, 24, had been in a federal jail since August 1 for refusing to turn over unaired videotape of a 2005 protest that resulted in damage to a San Francisco police car. He also refused to testify before the grand jury that’s hearing accusations that crimes were committed at the protest. Because of Wolf’s refusal, U.S. District Court Judge William Alsup held him in contempt of court and ordered him to jail.
Attorney Mickey Osterreicher of Buffalo, NY, who represents NPPA on First Amendment issues, responded to the news of Wolf's release today saying, "While it is unfortunate that a journalist had to spend 30 days in jail in order to uphold his First Amendment right to gather news without becoming an agent of law enforcement, it is also encouraging that the chief justice of the 9th Circuit along with another judge found merit in his appeal and released him on his own recognizance."
Wolf is now free on bail while his appeal is pending. A different 9th Circuit Court panel than the one that released him is now scheduled to rule on Wolf’s refusal to hand over the videotape. If he loses the appeal, he can be returned to prison until the grand jury’s term expires in July 2007.
A week after he was jailed, the president of the National Press Photographers Association led a press conference in San Francisco protesting Wolf’s incarceration and called for his release. At the same time NPPA also protested two separate court rulings, one against San Francisco Chronicle reporters in the BALCO baseball and steroids scandal who have refused to name sources who provided them with secret grand jury testimony, and a separate a court ruling that allowed investigators to examine the telephone records of New York Times reporters.
“This is a major victory in our ongoing battle to defend First Amendment protections for journalists,” NPPA president Tony Overman said today. “Jailing journalists for invoking those protections is wrong. And today the appellate court confirmed that. The judges recognized what NPPA and other journalism organizations have said all along: that journalists have the right to oppose the government’s demands to relinquish unpublished photographs or video.
“This case is far from over, and ultimately the final outcome may not support shield law protection. We will continue the fight. However, today's ruling makes clear that it was wrong to jail Wolf simply because he invoked these protections.”
NPPA past president Alicia Wagner Calzada said, "Without shield laws, and the use of restraint when subpoenaing journalists, photographers and reporters will be viewed as evidence gatherers and will find it harder and harder to gain trust from their sources. The fact that federal courts were used to get around a state shield law is appalling. The lawmakers of California they recently voted unanimously to ask Congress for a federal sheild law as a direct result of the Wolf case."
When the judge jailed Wolf for refusing to turn over to a federal grand jury his unaired video, The Washington Post reported that Alsup said that he was not jailing Wolf to punish him. “The purpose of this is to get you to change your mind,” the judge was quoted as saying.
At the time he was jailed, the Associated Press reported that Wolf had sold footage of the protest to San Francisco television stations as well as posting it on his Web site, but that investigators were seeking portions of that videotape that had not been broadcast.
Osterreicher wrote shortly after Wolf was taken into custody, “The first San Francisco (Wolf) case is disturbing because state and federal prosecutors apparently joined forces in circumventing California’s comprehensive state shield law, claiming that the burning of a police car and the injury to a police officer during a protest outside a meeting of world economic leaders falls under federal purview because the San Francisco Police Department uses federal funds to purchase its police vehicles. In almost all cases such crimes would be considered a violation of state law.
“Had prosecutors convened a state grand jury, Wolf would have been able to claim the reporter’s privilege not to be compelled to testify or provide evidence gathered in his capacity as a journalist unless the government made a showing that the information he possessed was sufficiently important to the case at hand and that it was unavailable from other sources. California’s shield law also protects a journalist from being held in contempt of court for refusing to disclose either unpublished information or the source of any information that was gathered for news purposes, whether the source is confidential or not. An exception can arise where a criminal defendant’s federal constitutional right to a fair trial would be violated without a reporter’s testimony.”
NPPA, the American Civil Liberties Union, and the Reporters Committee for Freedom of the Press, and other press freedom organizations have supported Wolf’s refusal to comply with the subpoena, and have offered to support his defense.
“Jailing a journalist for his work is alarming, especially so when it is done by a democratic country,” Joel Simon, executive director of the Committee to Protect Journalists, said today.