A Troubling Freedom of Press Case

U.S. District Judge William Alsup sentenced freelance photographer Josh Wolf, 24, to what could be a year in federal prison for contempt of court. Wolf, citing a right to withold unpublished material, refused to surrender a videotape he shot of a 2005 anarchist demonstration, in which a San Francisco police officer suffered a skull fracture at the hands of protesters.

Portions of the tape had been broadcast on network news, but the grand jury wanted the whole thing. Aspiring journalist Wolf’s standing as a professional under the First Amendment was questioned, and federal prosecutors also cited the fact that Wolf had not promised anyone he would not divulge the source of his information.

In fact, Wolf’s standing under Freedom of the Press had little or nothing to do with the ruling, it turns out. “Every person … has to give information to the grand jury if the grand jury wants it”, Judge Alsup warned in federal court.

What is most troublesome is the federal prosecutor’s conveniently arbitrary approach to the case. Why were the feds involved? It wasn’t the injured officer that concerned the prosecutor, believe it or not, but the fact that an SFPD patrol car was allegedly burned – and the SFPD receives money from Washington.

In other words, though there’s no evidence the tape will help determine who torched the police car – Wolf says there isn’t any – the grand jury wants the tape because it might contain evidence of a possible federal crime, namely, burning a car financed in some part by government money.

In that case, why isn’t every crime a federal crime, since directly or indirectly Uncle Sugar’s money is invested? It is becoming all too apparent that a federal crime is any crime that arbitrarily strikes the fancy of a federal public servant. After all, prosecutors are resume-builders just like other career professionals.

In Oakland, young people are shot to death almost daily, sometimes with hundreds of people around. When police try to round up witnesses, they meet the same old frustrating reply: “I ain’t seen nothing.” Why not just bring each bystander before a federal grand jury (since the youth was educated with federal funds) and compel each to blab what they know?

Well, even a federal prosecutor knows you can’t prove a given individual saw something but isn’t telling.

The problem here is that Wolf shot a videotape and claimed credit for his work. The lesson for all of us: if you saw something, you can keep your mouth shut, but if you shot a videotape, you weren’t shooting a documentary. You were shooting federal evidence.

Similiar cases involving credentialed journalists show that Second Amendment rights (freedom of the press) just doesn’t cut much ice in federal court. A New York Times reporter has been sentenced to 85 days for refusing to divulge confidential sources. San Francisco Chronicle reporters are in court right now defending their sources in the Bonds steroid case. Is there a trend here?

It isn’t just reporters, supposedly protected by a specific amendment to the Constitution, who are in hot water now. It’s anyone possessing knowledge the Feds want.

In the past, most people tended to polarize into one of two camps on this sort of issue. (a) “He’s withholding evidence. Throw the bum in jail”. (b) “This is a Constitutionally protected issue. No matter what personal opinions we form about the particulars of the case, the Constitution has to be respected.”

In the long run, when we balance constitutional guarantees against a federal prosecutor’s interest in investigating a “possible federal crime”, there can no longer be any question about which way the Fed will go, or, increasingly, how the judges hearing those cases will rule. Use a footnote, go to jail.

This case smells like a fishing expedition.

Mark my words, we’ll soon start seeing anonymous videotapes and anonymous first person eyewitness accounts being published on the web through phony IP addresses, Al Qaeda style, which news reporters will then be free to cite: “An anonymous source reported today … the source is untraceable and, as always, could not be reached for comment.”

So much for documenting your sources.

Barry Bonds? Baseball? If you possess any kind of information “of possible interest” to the government, you need look no further to see what rights you have in the matter. It’s a whole new ballgame now.

news source: San Francisco Chronicle, Tuesday, August 2, 2006

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