This aggression will not stand:
Chilling effect of blogger Josh Wolf’s jailing fires up First Amendment fans (Sept 2006)

By Adam Brody & Jeremy Bates

With our free press rights, The Beat will print an editorial headline—in this case, a Big Lebowski quote that speaks for Josh Wolf, who once wrote for our little paper. The activist blogger spent the entire month of August in a Dublin, CA federal prison to protest what he and journalists nationwide see as an assault on The People’s constitutional protections.

At a press conference on Sept.1., his first day out on bail, Wolf compared his legal clash with the federal government to the case of David v. Goliath (1027 B.C.). A solo “indy” reporter and his small, handheld camcorder against the behemoth U.S. “Justice” Department, which is demanding he release to a grand jury outtakes from his July 8, 2005 video of an anarchist anti G8 rally gone awry. Wolf says he doesn’t have the footage the feds want of an SFPD officer being assaulted, and refuses to be turned into a “de facto government informant” by being coerced to turn over the original tape (the published, edited version can be found at joshwolf.net).

To wrest the outtakes from his possession in order to possibly pinpoint the perps who injured its officer at the rally (and perhaps to sidestep a DA it distrusts, as well) the SFPD federalized the case by pointing to a taillight on a police cruiser––purchased in part with U.S. government funds––that was broken at the protest.

By the time you read this, a panel of circuit judges may have already denied Josh Wolf’s appeal and sent him back to federal prison for contempt of court. After all, he was only released on bail because his appeal was deemed “not frivolous.” Or, perhaps the panel will find, or will have found, in favor of one of Wolf’s key arguments.

The problem for Wolf is the precedents he cites, and a main argument he makes—that he can’t be subpoenaed without the Attorney General’s O.K. —hinge on the court considering him part of the news media.

And even if he is deemed a journalist, there is no Federal Shield Law on the books—just a patchwork of shield laws state by state. Such press protection laws exist in 32 states counting D.C. if you believe the Chronicle, or in all but one state the way Wolf’s lawyers spin it (our legal research department didn’t have the time to reconcile the figures). But the SFPD was able to skirt California’s law by federalizing the case.

Even if Wolf is off the hook as you read this, the proposed Federal Shield Law—called the Free Flow of Information Act—will still be lolling about in the House and Senate’s respective Committees on the Judiciary.

And even if the Free Flow of Information Act is expeditiously passed before the 109th Congress adjourns (after all, it is sponsored by Republicans, Rep. Mike Pence and Sen. Richard G. Lugar, both of Indiana), the legislation’s definition of “journalist” likely would not cover bloggers.

The bill defines ‘journalist’ as “a person who, for financial gain or livelihood, is engaged in gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing news or information as a salaried employee of or independent contractor for a newspaper, news journal, news agency, book publisher, press association, wire service, radio or television station, network, magazine, Internet news service, or other professional medium or agency which has as 1 of its regular functions the processing and researching of news or information intended for dissemination to the public.”
Prosecutors in this hypothetical future of federally protected journalists would all but certainly try to limit the definition of “internet news service” to exclude activist anarchist blogs.

Wolf worries about the consequences, far beyond his case, of using compensation—“financial gain or livelihood,” “salaried employee or independent contractor”––in the definition of ”journalist.” Only affording protection to paid reporters would create, according to Wolf, a “corporatocracy” that “goes against the idea of a free, independent press.”

And not to be too pessimistic, but even if the Federal Shield Law passed and was deemed applicable to Wolf, a loophole that would eat the law has been tacked on to the end of the bill.

The “Sec. 9. Exception for National Security Interest” would mandate “disclosure of information [if] identifying the source is necessary to prevent an act of terrorism or to prevent significant and actual harm to the national security…”

Isn’t it when an administration protects itself in the name of national security (read, presidential job security) that the public needs a bold press the most? And, gee, we wonder if Justice Department lawyers would try to argue that anarchists threaten national security…

And trying to argue, even unsuccessfully, is enough, because a chilling effect doesn’t require conviction: harassment in court and the financial burden of hiring attorneys is more than enough to make any citizen think twice before sticking his/her neck out to keep fellow citizens informed.

So this bill has been neutered before birth, and won’t stop a government that views the First Amendment as “quaint.” That quote of course is from the Alberto Gonzales’ opinion of the Geneva Conventions, but when journalists are suddenly going to jail left and write (sorry), it seems the administration holds the public’s right to know in similar esteem. All these so-called “constitutional originalists” need now are some more “activist judges” to continue reinterpreting a 200-year old tradition of free press…

Wolf, who seems to have had a direct hand in preparing his court documents, already understands the proposed federal law is flimsy, and says a larger effort is needed to preserve First Amendment rights.

And he is not without his fair share of supporters. The ACLU and the Reporters Committee for Freedom of the Press have filed amicus briefs on Wolf’s behalf, and the California Legislature, SF Board of Supervisors, National Lawyers Guild and Society For Professional Journalists have all spoken up for him, as well.

On the ground, hard-living muckraker h. brown has championed the cause, helping to organize “Journalists for Josh” fundraisers to pay Wolf’s August rent and to push those with means to contribute to his legal defense fund. Guardian publisher Bruce Brugmann has taken a personal interest in the case, and co-owners of the online SF Sentinel, Luke Thomas and Pat Murphy, are all over the story, as well.

Wolf says he is “honored to have to opportunity to contribute to a movement that could eventually cement the rights of the media,” and that he will not cave to the government’s demands. He and his lawyers insist they are prepared to take the case all the way to the Supreme Court. Unfazed by 30 days in prison, Wolf says he is launching a project to give voices to inmates—www.prisonblogs.net—and even gave precautionary words of wisdom to Mark Fainaru-Wada and Lance Williams, the two Chronicle reporters who face more jail time for using secret grand jury testimony in their book Game of Shadows than Barry Bonds will ever see. “Bring money” and “be polite,” Wolf advises.

The Beat hopes that the 24-year-old Wolf will be able to continue televising the revolution on joshwolf.net, and not have to patronize prisonblogs.net himself during his fight––and even more importantly, that we all make his fight for freedom our fight for the right to know.

Find court documents at joshwolf.net/grandjury
Legal guidelines for bloggers, published by the Electronic Frontier Foundation, at eff.org
Sign up to stay informed at http://lists.riseup.net/www/info/supportjoshwolf