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"Loss of Press Freedoms in Post-September 11 America":

The executive editor of commentary at c|net news writes:

[A] San Francisco video blogger named Josh Wolf remains in the Federal Detention Center in Dublin, Calif., where he continues to set new records as this country's longest-serving journalist behind bars.

Wolf's family and friends understandably can think of little else. He's become the poster child for a variety of free speech advocates who say his imprisonment vividly symbolizes the loss of press freedoms in post-September 11 America. You might assume more people would be listening, but Wolf's plight has failed to capture the public's imagination....

Well, consider the details of Wolf's plight:

Wolf videotaped a July 2005 demonstration in San Francisco protesting a meeting of the G8 economic summit. The local district attorney wanted the unedited footage to assist a police investigation into violence which marked that night. The 24-year-old refused to turn over the full video to a grand jury.

Recall that all citizens must generally testify before grand juries -- or turn over tangible evidence to grand juries -- if they know things relevant to a criminal investigation. In 1972, 29 years before 9/11, the Court faced a journalist's claim that journalists have a First Amendment exemption from this duty, and rejected it. The Court left open room for some limited First Amendment protection for journalists, but quite limited; and since then journalists have repeatedly been required to testify before grand juries. And this is so even as to confidential communications to journalists, where journalists can most plausibly claim an analogy to the several narrow exceptions to the duty to testify (for instance, attorneys', psychotherapists', and clergy's right not to testify about confidential communications by their clients or parishioners).

It's hard to see how Wolf's case symbolizes "the loss of press freedoms in post-September 11 America." First, the rejection of the First Amendment arguments he makes long predates September 11. Second, to my knowledge there was never a time when the press had an established freedom not to testify, especially as to facts they observed in a public place. Third, even if "press freedom" should include the right to gather confidential information without the risk that one will be required to testify about it, I don't see a persuasive argument for why "press freedom" includes the right not to turn over publicly gathered video footage of a public demonstration. I certainly don't see any such argument in the c|net column.

Here, by the way, is what the Ninth Circuit wrote about this (some citations omitted):

The issue of whether journalists who are called to testify before grand juries are entitled to protection under the First Amendment is not new. 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 (1972). The 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." Reporters have no First Amendment right to refuse to answer "relevant and material questions asked during a good-faith grand jury investigation."

In interpreting Branzburg, we have 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) [EV: A Post-September 11 case or not? You be the judge]. The district court specifically found that none of the concerns articulated in Scarce is present in this case. We agree. None of the authorities cited by either Wolf or the amici requires the district court to conduct a balancing test where, as here, there is no showing of bad faith and the journalist refuses to produce non-confidential material depicting public events.

Wolf argues 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. The issue here is not whether prosecution of a given crime is in the government's interest. The Supreme Court specifically cautioned against the courts making such determinations. The grand jury in this case is investigating conduct related to a possible violation of 18 U.S.C. § 844(f)(1). The evidence in the record appears to support the investigation. Moreover, the video footage of the protest filmed by Wolf is directly relevant to the grand jury's investigation. Accordingly, the grand jury investigation is being conducted in good faith and the district court correctly refused to conduct a balancing test.

[Footnote: Even if we applied a balancing test, we would still affirm. Wolf sold a portion of the videotape to several television stations, and posted portions of the videotape on his Website. The taped activities occurred entirely in public and did not occur in response to Wolf's prompting, whether by questions or recording. He simply videotaped what people did in a public place. Wolf does not claim that he filmed anything confidential nor that he promised anyone anonymity or confidentiality. Therefore, this case does not raise the usual concerns in cases involving journalists. See Branzburg; Lewis v. United States, 501 F.2d 418, 423 (9th Cir. 1974) (holding "there was no request by the suppliers of the document and the tape to keep the information contained in them private or to withhold the articles themselves from examination. Even had there been such, the lesson from Branzburg, supra, is that such a request, either explicit or implicit, may not override the authority of the Grand Jury.").]

Wolf and amici next argue that we should recognize a common-law journalist's privilege pursuant to Federal Rule of Evidence 501. This argument has been squarely rejected. See Branzburg; cf. Scarce.

Wolf and amici also argue that the 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 698 ("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."). Our decision today does not alter the long-established obligation of a reporter to comply with grand jury subpoenas.

I wish I could give this as an example of the not uncommon loss of press perspective, and commitment to accuracy, in post-September 11 America. But there too I can see nothing quintessentially "post-September 11" about it.

Related Posts (on one page):

  1. Journalist's Refusal to Testify as Refusal to Be Government's "Lap Dog":
  2. "Loss of Press Freedoms in Post-September 11 America":
BobNSF (mail):
Frontline just began its four-part series on the media called "News War". more info here


See Branzburg, 408 U.S. at 698 ("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.").


Hmm... true perhaps in 1974. Not so clear today.
2.23.2007 2:58pm
Houston Lawyer:
These aspiring martyrs should all see "Absence of Malice".

Until you've read a report put out by a reporter that involves events of which you have personal knowledge, you have no idea how biased reporters are.
2.23.2007 3:17pm
TDPerkins (mail):
BobNSF wrote:

Hmm... true perhaps in 1974. Not so clear today.


Is it your contention that the press was innapropriately shielding violent criminals in 1974, but that it is appropriate for the press to do so today?

Is yes, why should the press by afforded a privelege of shielding violent criminals from investigation by a grand jury in this time?

Yours, TDP, ml, msl, &pfpp
2.23.2007 3:21pm
lucia (mail) (www):
<blockquote>Wolf and amici also argue that the 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. </blockquote>
The court order won't have any chilling effect on anyone ability to gather news because
a) demonstrators want reporters present. The alternative is more limited coverage and makes it difficult for them to get their story out and

b)with all the cameras people are carrying these days, people know they might be filmed. It's either be fillmed by someone with press credentials who migh broadcast the demonstration, or be filmed be some random person who will later put the thing on utube.

BobNSF— could you fix your link?
2.23.2007 3:23pm
AF:
Prof. Volokh, I agree with you on the state of the case law covering journalist's privilege, and I agree that it hasn't changed much since 9/11. What has changed, I think, is the aggressiveness with which the government has gone after journalists. See N.Y. Times Co. v. Gonzales, 459 F.3d 160, 182 (2d Cir. 2006) (Sack, J., dissenting) (referring to "'the dog that did not bark' -- the paucity (not to say absence) of cases in the many years between Branzburg and In re Grand Jury Subpoena [397 F.3d 964 (D.C. Cir. 2005)] in which reporters have indeed been ordered to disclose their confidential sources.").
2.23.2007 3:23pm
Harry Eagar (mail):
'Common-law journalist'?

That's a new one on me. I've been a newspaperman for 40 years, and it's pretty clear that I am a 'journalist': I get paid for reporting, my reports are published regularly, there is an organization that people who don't like my reports can complain to. (Plenty do.)

I'm open to a much broader conception of the status of 'journalist' than we had back in 1966, but 'ownership of a video camera' doesn't meet my test.

I can't say I agree with Bob that government has made it harder to develop confidential sources. There are more lawyers than there were in 1966, which means more attempts to force reporters to reveal sources. But those attacks are about as likely to come from private parties as from the government.
2.23.2007 3:24pm
Cathy (mail) (www):
I might agree that there's no post-9/11 connection, except perhaps in potential prosecutorial zeal to investigate alleged crimes connected to public gatherings and a related increase in distrust towards those who would resist those efforts.

That notwithstanding, Branzburg might foreclose Wolf's claim for an absolute privilege, but a qualified privilege argument can still survive in post-Branzburg jurisprudence, and I believe Wolf still has a legitimate claim for being covered by it (even without it being a strictly shield law situation). There the post-9/11 argument comes back in, because when the interests are balanced (including the very important factor of whether the prosecution absolutely positively needs *this* evidence to make its case), the post-9/11 environment may cause it to be balanced less favorably than it would have before then.

Furthermore, it's a bit glib for the courts to say that journalism has thrived in the absense of a clearly enumerated privilege. For one, there's a colorable argument that journalists have interpreted the ambiguous legal landscape as still providing them one, and two, until recently, there's not been so many citizen journalists seeking to take advantage of it. We may now only get to see a vibrant journalistic force be squelched now that technology has made it possible to actually have one.
2.23.2007 3:25pm
Dan Hamilton:
I am sorry, just don't see why Wolf requires this protection. He is not afraid of the Law he is afraid of the protesters! If it becomes normal for video to be turned over to the police then the first thing that the protesters will do is get rid of the people making the videos. That might be dangerous for Wolf. He can't have that. Risk something to get a story or money? How dare anybody expect newsmen to do that.

This is about fear of the people who are violent and the scavengers that feed off them.
2.23.2007 3:29pm
TDPerkins (mail):
Here is the law in question:

18 U.S.C. § 844(f)(1)

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.


So unless Wolf can get this law declared unconstitutional (which ideally he could do, since I bet it is grounded in the commerce clause grotesquery ) the grand jury is certainly acting in good faith if the police dept in question has rec'v'd federal largesse.

And even if this were a state level action, would Wolf promptly turn over the tape to a state grand jury?

I suspect arson is also a felony viloent crime in the state he is in.

Yours, TDP, ml, msl, &pfpp
2.23.2007 3:31pm
John T. (mail):
What has changed, I think, is the aggressiveness with which the government has gone after journalists.

One of the most notable being an attempt to go after the current Administration itself, of course, for leaking. What precisely that means can be debated. That one featured the rare instance of the New York Times itself calling for an investigation into secret journalistic sources.
2.23.2007 3:41pm
John Castiglione (mail):
The real question here, I think, is not whether reporters have been faced with stronger legal restrictions since 9/11 (the answer is no), but rather whether state and federal enforcement agencies have pursued reporters more aggressively than in the past.

The Justice Department has guidelines for issuing subpoenas to reporters; these guidelines hold that DoJ attorneys may not issue subpoenas to members of the news media in criminal cases before 1) reasonable attempts are made to secure the information from alternative sources, 2) negotiations with the media member or outlet in question have been pursued, and 3) the Attorney General has authorized the subpoena. When requesting authorization from the Attorney General, federal prosecutors are to be “guided by the principle” that 1) reasonable grounds exist to believe that a crime has occurred, and 2) that the information sought is essential to a successful investigation. Tellingly, these guidelines, borrowing language from Branzburg, are supposed to operate "to prohibit federal law enforcement officers from annexing the media as an investigative arm."

While obviously not knowing all the facts, I find it hard to believe that these guidelines have been scrupulously honored in this case. Isn't this a clear case of annexing the media as an investigative arm of law enforcement? Why do I think the "negotiations" consisted of the Department saying "Give us the tape, or you'll go to jail"? While the Guidelines explicitly state that they do not create enforcable rights in court, I think a journalist has a right to expect the DoJ to make a good faith effort to abide by them. I question whether that happened here.

Now, while I don't think reporters are formally any worse off now than they were before 9/11, and while I don't think reporters should have a testimonial privilege under the First Amendment, I do think that the Justice Department has begun to lose sight of the harsh chilling effect subpoenas like these have. While I don't expect a sudden respect for civil rights to blossom in the last few years of Gonzales' reign, I would hope DoJ would be a little more sensitive in a case like this.
2.23.2007 3:53pm
Chandler (mail) (www):
As a reporter once subpoenaed to testify to confidential sources in a state murder case, I can tell you it's very unpleasant to have that paper slapped into your hand. The First Amendment lawyer my paper hired told me that it was good we weren't in federal court, because I'd either talk or go the lockup until I did--which I was prepared to do in any case.

Tennessee has a reporter's shield law and I avoided testimony via the provisions of it, but I was one more frightened sucker. I could see myself locked up in there with a bunch of dudes I'd written very unflattering things about. I can only imagine how much scarier that would have been had the feds been involved.
2.23.2007 4:09pm
Mark Buehner (mail):
And we all known the 9th Circuit is a longstanding bastion of Bush/imperial government support...
2.23.2007 4:11pm
D Palmer:
Cathy,

You said "(including the very important factor of whether the prosecution absolutely positively needs *this* evidence to make its case)".

How can the value of the evidence be judged if it has not been viewed? And when did the witness acquire the right to determine the value and relevance of their evidence and the right to testify or not based on their opinion of the relative value of said evidence?

I am not a big fan of the Grand Jury process, especially a witness' lack of legal representation and the inability to refute evidence presented by others or even know the source and nature of this evidence.

Despite that, I think that Wolf does not have the right that he is asserting and that his failure to turn over the video probably has more to do with paranoid delusions of government persecution than any legitimate attempt to protect his "sources".
2.23.2007 4:16pm
BobNSF (mail):
Ooops, sorry.

Link to Frontline Corrected. The first installment of the "News War" series is "So What Does the Plame Case Add Up To?" listed on the menu on the left side of the page.
2.23.2007 4:19pm
BobNSF (mail):
TDPerkins:

Is it your contention ... ?


Sorry, I was really unclear about what I thought wasn't so true anymore. I was struck by the bit about the press flourishing. That's hardly true, on any level.
2.23.2007 4:21pm
josh:
EV said: "In 1972, 29 years before 9/11, the Court faced a journalist's claim that journalists have a First Amendment exemption from this duty, and rejected it ... It's hard to see how Wolf's case symbolizes 'the loss of press freedoms in post-September 11 America.'"

Well, I'm not sure that's a fair reading of the law or the facts since 9/11. My understanding is that until the DC Circuit ruled on the Judith Miller/Matt Cooper grand jury testimony dispute, and the S Ct. refused to hear the appeal, there was still a number of courts following the Powell concurrence in Branzburg, which indicated more leeway for a commn law reporters privilege or shield. (See http://www.pbs.org/wgbh/pages/ frontline/newswar — watch the interview with NYT GC James Goodale, who is credited with the adoption by many states' supreme courts of the Powell concurrence)

I suppose the actions of a special prosecutor cannot be attributed necessarily to the "post-9/11" world, but certainly, the Judith MIller case is a recent development and shift in what had been (at least) a clouded decision about the reporters privilege.

Second, is it accurate to state that "there was never a time when the press had an established freedom not to testify, especially as to facts they observed in a public place" in light of the fact that most states have some sort of statutory reporters' privilege? Certainly, in state prosecutions in those jurisdictions, reporters do have an "established freedom not to testify" as to the items deliniated in the statute. (Since you're at UCLA, here's California's statute: http://www.rcfp.org/cgi-bin/privilege/ contents.cgi?st=CA&t=frame)

Now, I do agree that Wolf's case seems to present bag facts for the reporters privilege. As the court held, Wolf transmitted the tape already. But had he been prosecuted by California authorities, for example, and had not done so, he would have been protected by sec. 1070 of the California Evidence Code:

"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, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public."

——
"I wish I could give this as an example of the not uncommon loss of press perspective, and commitment to accuracy, in post-September 11 America. But there too I can see nothing quintessentially "post-September 11" about it."

Not sure what that means. Just snark?

In any event, I think this issue is best framed by TDPerkins, who asks, "why should the press by afforded a privelege of shielding violent criminals from investigation by a grand jury in this time?" For me, this isn;t an issue of what the law is, but what it should be. And what it should be is based on policy considerations supporting freedom of the press. I won't go into those. They are well explained in the Frontline series.

And the landscape has shifted since 9/11. Since our characterization of the "War on Terror," journalists have been the focus of as much negative commentary as the terrorists. James Risen, who wrote the NYT's NSA story that informed the public about the warrantless wiretapping, Dana Priest, who wrote the NYT story about secret detention facilities in Europe, and others, are now the focus of calls for prosecution of the press. If we are willing to go that far, who doubts we likewise won't seek the identities of the confidential sources who led these reporters to those stories?

I find it hard to believe that these attitudes toward the press are not in part the result of 9/11. Think about it, without James Risen's original work, we VC readers would have been utterly deprived of the many posts analyzing the legality of the NSA wiretapping program. I, for one, am thankful for having the knowledge of that program and the analysis of such able legal minds as the posters on this site. We would not have had this information but for confidential sources.
2.23.2007 4:22pm
A. Zarkov (mail):
Just who is a journalist? One answer seems to be “anyone.” The other answer is “you’re a journalist if someone pays you to do your journalism activities.” I have trouble with the latter answer as it seems too vague and open to abuse. How much do you have to get paid? Does the pay have to be regular and of an amount sufficient to sustain you? Suppose two people want to be journalists. If A pays B and B pays A, does that make them both journalists? Getting paid does not sound like a workable definition.
2.23.2007 4:27pm
trotsky (mail):
If the case were being investigated by the San Francisco district attorney, Josh Wolf would have pretty ironclad protection under the state's shield law, which protects all journalists' work products. (He's not just a guy with a videocamera; he did sell footage to the local TV news, which makes him a bona-fide freelancer.)

However, the U.S. attorney took this local crime and claimed federal jurisdiction on the theory that the San Francisco P.D. squad car that somebody might have attempted to set on fire was bought in part with federal money.

The prosecutor is being very aggressive — overly so — and ought to let Wolf go, but it hardly emblemizes the loss of press freedom in this country.

Comically enough, "Press War" reported that John Ashcroft's policy was almost never to subpoena a reporter. In the Libby fiasco, it is the independent prosecutor Fitzgerald who's causing all the grief — and yes, that's to get the administration.
2.23.2007 4:28pm
AntonK (mail):
Loss of press freedoms? What a joke.

With the New York Times and the LA Times as examplars, we've seen our "press" campaign, up to and including (to some) committing Treason, against post 9/11 security initiatives.

Let's see. I'll have to check with the editorial boards of both these papers at their next upper West Side Wine &Cheese party to see how their confinement is going.

Loss of freedoms, indeed!
2.23.2007 4:35pm
Justin (mail):
I think EV's post is off the mark for a variety of reasons.

1) I agree with poster AF, and have to add that our freedoms do not come solely from judicial interpretation, but executive enforcement - including prosecutorial discretion. The aggressiveness of the DOJ in "taking freedoms" is not just a legal phenomenon, but an enforcement-oriented one. And such cases can range from these types of cases to general prosecutions to antitrust and securities enforcement, to overutilization of the now-infamous "administrative detentions" for "special witnesses." However, for much of this I blame the Federalist Society and the Bush Administration's appointments to the Department of Justice, more than ephermal "9/11" applications, or even the PATRIOT act.

2) Given that this was a cnet commentary, I think this roundabout and sadly typical comment by EV:

"I wish I could give this as an example of the not uncommon loss of press perspective, and commitment to accuracy, in post-September 11 America. But there too I can see nothing quintessentially "post-September 11" about it."

Is unfortunate, and baseless. I assume the "perspective: that the press allegedly loss, and the commitment to accuracy, that EV is talking about, is the rehashing of the completely bogus allegations by AIM, Rush Limbaugh, RedState, National Review, Fox News, etc. - the same arguments that the press should be reporting more good news about Iraq folk. I doubt EV is referring to the fact that the press lost its perspective for several years on its responsibility to act as a watchdog on the federal government.

As to the rest of EV's post - my first point - I think EV and I simply disagree. But I think the second point was an unfair criticism designed to attack motives and prevent a legitimate debate over our freedoms, a 9/11 waving and fact-dismissing the political right has gotten all too comfortable with in dismissing ideas and arguments that they do not like.




2)
2.23.2007 4:36pm
Brett:
Can someone help me to understand the justification for any sort of "journalist's privilege", regardless of whether the law provides one in this particular case?
2.23.2007 4:38pm
Justin (mail):
Two other points:

1) I know my OP goes far beyond "press" freedoms, but "press" freedoms are not my area of specialty, and this one point I think substantiates the claim. In any event, other freedoms that are less claims of legal right but are nevertheless freedoms - questions that tend to go to access - have also been clearly diminished by this administration.

2) The fact that the press has more freedom than it would in some repressive dictatorship - whether of the Nazi, Russian, Cuban, Venezualen, or Chilean kind - is neither here nor there. The question is related to our democracy, one built on different - and better - values than any of those comparisons.
2.23.2007 4:40pm
John Castiglione (mail):

Just who is a journalist? One answer seems to be “anyone.”


That's usually the main criticism of the journalist's privilege. Would bloggers count? I think fair to say that bloggers do as much if not more insightful journalism these days than the MSM, at least in regards to certain subjects. Should they get a testimonial privilege? What about the guy handing out leaflets on the street? "Freedom of the press" is at least as much about a pamphleteer as it is someone who purports to discuss or report on "the news." Lovell v. City of Griffin, 303 U.S. 444 (1938) (“The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets.”). Should the privilege be stratified depending on what kind of press is at issue? That's clearly unworkable.
2.23.2007 4:43pm
PatHMV (mail) (www):
For those who think that the government has been more aggressive at subpoenaing reporters, isn't it also possible that the press has simply become more resistant to cooperating with the government at all?

In addition to the rise of "citizen journalists" (which itself poses real problems and why there can't be a First Amendment exemption for the press), the nature of newsrooms and the relationship between reporters and their country have fundamentally changed since the Vietnam War and Watergate. Back in the 40s or 50s, my bet would be that a local journalist with evidence against a bunch of car-burning hooligans would be perfectly willing to turn over that evidence to the police, once asked. If they did resist, it would probably be for a very specific reason, rather than a general assertion of right. Today, however, the journalist considers him- or herself to me much more removed from society, an observer rather than a participant and resident of the community.

Absent any evidence, I think that could equally well explain any increase in the number of subpoenas to journalists in the past 10 years.

And remember, it was the journalists, especially the New York Times, who wanted the Plame "leaker" to be prosecuted to the fullest extent of the law... right up until the time it meant their reporters would have to testify.

Reporters are citizens too, and equally subject to the laws as the rest of us. Me, I'm sick and tired of them acting as if they are above the law, refusing to heed lawful orders of the courts.
2.23.2007 4:47pm
John Castiglione (mail):

Can someone help me to understand the justification for any sort of "journalist's privilege", regardless of whether the law provides one in this particular case?


As the argument generally goes, the absence of a journalist’s privilege unduly limits the freedom of the press. The argument posits that given the need for a free, independent media in a well-functioning republican society, the idea that a journalist can be compelled to reveal a confidential source (or face contempt proceedings, with the possibility of imprisonment) unduly infringes on the independence of the media, turning it into a so-called “investigative arm of government."

Proponents of the privilege point to situations sort of like the one we are discussing - aggressive government agents throwing journalist's into jail in order to get at their sources. This chills freedom of the press, they say, because journalists will be less likely to use anonymous sourcing in the absence of a privilege, or be less willing to investigate illegal behavior, lest they be hauled into court everytime the prosecutor wants some information.
2.23.2007 4:49pm
rarango (mail):
I don't read EV's last paragraph that way, Justin--Looks to me like he's saying that the lack of press perspective and accuracy predates 9/11 and has always been a problem for the "fourth estate." But thats just my reading. EV can clarify if he desires.
2.23.2007 4:49pm
Rich B. (mail):

It's hard to see how Wolf's case symbolizes "the loss of press freedoms in post-September 11 America."


No. It's very easy. Because "Press Freedom" is not synonymous with "Outside Constitutional Limits." I will state Four ways in which the Wolf case symbolizes the loss of press freedom in post-September 11 America.

1. Longest Serving Journalist Behind Bars. Making an act that was punishable by several days in jail now punishable with 6 months in jail constitutes a "Loss of Press Freedoms", even if the longer jail time was legally and constitutionally permissible earlier.

2. More Federal Prosecutions. California has a state journalist-shield law. This would not be an issue in state court. By Federalizing more conduct, there is a corresponding Loss of Press Freedoms by moving cases to courts that don't have the shield laws.

3. Explicit Violations of Department of Justice Standards.

The DoJ has explicit standards on when to subpoena journalists' documents, available here.
It is all standards limiting the use of subpoenas, and requiring extreme discretion (see below). Importantly here:

(4) The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.


The subpoena in this case directly contradicts DoJ explicit standards, even if they don't violate the Constitution of the United States.

4. Prosecutorial Discretion. Journalists almost NEVER get sent to jail, becuase prosecutors have chosen not to push these issues to the constitutional limits -- now we've got Josh Wolf, the Balco guys, Judith Miller. . . Discretion is going out the window.

Branzburg showed constitutional limits, but they do not accurately reflect the actual state of affairs between then and 9/11.
2.23.2007 4:51pm
SeaLawyer:
Should the press be able to withhold evidence of a crime? That is what appears to be the issue here.
2.23.2007 4:51pm
Justin (mail):
John,

To some degree, that problem could be diminished, in practice if not judicially, by focusing on the purpose of the first individual in obtaining the information, rather than the person's job or status. If someone randomly saw something and blogged about it, that's probably not priviliged - but if someone was doing reporting or investigation and discovered something, or was told something for the purposes of reporting it to the public - that would more likely be covered.
2.23.2007 4:51pm
Brett:
Thanks, John. I also notice EV's subsequent post on this subject, and I think I'm in general agreement with him that the "investigative arm of the government" argument is fairly weak.
2.23.2007 4:53pm
Justin (mail):
SeaLawyer - then why mention 9/11 at all? It seems like he's referencing the whole Limbaughian "the press doesn't care about 9/11" argument, and then rhetorically denying it in order to make a second argument - the Limbaughina argument that the press always hates conservatives.

Though he does not "technically" affirm the first one, I think his reference to it, especcially in light of the WAY he denies its applicability (not that its not true, but that its ALWAYS been true), shows some substantial endorsement regardless.
2.23.2007 4:54pm
Brett:
Rich B. writes:
By Federalizing more conduct, there is a corresponding Loss of Press Freedoms by moving cases to courts that don't have the shield laws.
Ah, irony.
2.23.2007 4:57pm
SeaLawyer:
Justin,
The reason that I think EV mentioned 9/11 was the following quote in the article:

He's become the poster child for a variety of free speech advocates who say his imprisonment vividly symbolizes the loss of press freedoms in post-September 11 America. You might assume more people would be listening, but Wolf's plight has failed to capture the public's imagination....


I was just asking a question and not trying to make a statement. Personally I have not seen a loss of press freedoms since 9/11.
2.23.2007 5:02pm
Justin (mail):
SeaLawyer, I'm sure that's what influenced his comment, but I don't think that limits the point. Otherwise, why counter it with press-perspective, unless he's referencing an old (and tired, and false) theme about how the press has failed to have "perspective" on what's important since 9/11 changed "everything."
2.23.2007 5:08pm
SeaLawyer:
Justin

Otherwise, why counter it with press-perspective, unless he's referencing an old (and tired, and false) theme about how the press has failed to have "perspective" on what's important since 9/11 changed "everything."


I cannot speak for EV or anyone else. Speaking for myself I don't think the press had perspective before 9/11 and even less now.
2.23.2007 5:21pm
John Castiglione (mail):

To some degree, that problem could be diminished, in practice if not judicially, by focusing on the purpose of the first individual in obtaining the information, rather than the person's job or status. If someone randomly saw something and blogged about it, that's probably not priviliged - but if someone was doing reporting or investigation and discovered something, or was told something for the purposes of reporting it to the public - that would more likely be covered.


Your point is well taken, although it has serious drawbacks. First, the prosecutor often won't know how the "reporter" accessed the information, and so will have to subpoena him to find out, thus defeating the purpose. For instance, if I post that "X committed fraud," how is a prosecutor supposed to know whether I saw him do it, or I "investigated" with the purpose of publishing? And should that difference even matter?

Ultimately, it comes back to the issue of discretion. Under the Justice Department guidelines, prosecutors are supposed to consult with reports before they haul them in front of a grand jury. They are also supposed to make every effort to gain access to the information in other ways. The exercise of discretion is so important not because journalists will fear going to jail if there is no privilege (although they might in some circumstances), the fear is that journalists who are forced to testify will become to feel (or worse, to be seen by the public) as co-opted by the government.

I don't support a federal journalist privilege because I feel it is impossible to honestly differentiate between journalists and non-journalists, and because I feel that a federal privilege would give politicians and others in government a de-facto grant of anonymity to lie, plant stories, smear enemies, and potentially break the law. See the Scooter Libby affair for a prime example of someone who tried to smear someone in the press and would have gotten away with it (even if just in the court of public opinion) had a journalist's privilege existed.
However, prosecutorial discretion is essential to temper the very real risk of overreaching.
2.23.2007 5:27pm
TDPerkins (mail):
Just who is a journalist? One answer seems to be “anyone.”


I would agree this is perfectly accurate.

1. Longest Serving Journalist Behind Bars. Making an act that was punishable by several days in jail now punishable with 6 months in jail constitutes a "Loss of Press Freedoms", even if the longer jail time was legally and constitutionally permissible earlier.


I can see the value of not jailing recalcitrant journalists when their hiding reporting resources acts to encourage the investigation of constitutionally questionable actions by agents of the governemnt. This is not alleged here, not even by Wolf. Either he needs to make a case for his shielding this specific evidence from a grand jury on those grounds, he needs to request protections from those he filmed if that is the issue, or he needs to let an arson be investigated by the grand jury.

There is no overarching public interest I can see being served in preventing the effective investigation of an arson. We're not talking about shielding Deep Throat here.

2. More Federal Prosecutions. California has a state journalist-shield law. This would not be an issue in state court. By Federalizing more conduct, there is a corresponding Loss of Press Freedoms by moving cases to courts that don't have the shield laws.


Does the denial by you of the appropriateness of this case being Federalized indicate you desire retrenchment from an expansive reading of the commerce clause? Do you propose that 18 U.S.C. § 844(f)(1) is unconstitutional?

Do you merely propose that the clause "or any institution or organization receiving Federal financial assistance" is unwise?

The subpoena in this case directly contradicts DoJ explicit standards, even if they don't violate the Constitution of the United States.


I don't know from the description of the standards that jailing Wolf does exceed the standards, inasmuch as they include

1) reasonable attempts are made to secure the information from alternative sources,


If Wolf's unshown film (in it's entirety) is the only plausible source of the information sought, do you propose the governement forego the prosecution of this arson? Where do you feel the larger public interst lies? Where is the allegation of government wrongdoing which Wolf's being jailed is supposedly heloing to cover up?

4. Prosecutorial Discretion. Journalists almost NEVER get sent to jail, becuase prosecutors have chosen not to push these issues to the constitutional limits -- now we've got Josh Wolf, the Balco guys, Judith Miller. . . Discretion is going out the window.


Josh Wolf is shielding arsonists from prosecution, whatever else his motives may be.

Judith Miller impeded an investgation her own paper bayed for--even in the light of the constitution, I call that an "own goal".

And I for the Balco guys, I sincerely wish the government did not think steroid use by ballplayers was any of it's business, but Shoeless Joe couldn't say it ain't so, and the gov't has had a bug up it's a$$ about that since then--it's got nothing to do with 9/11.

Yours, TDP, ml, msl, &pfpp
2.23.2007 5:47pm
TDPerkins (mail):
heloing /= helping Oops.
2.23.2007 5:50pm
Justin (mail):
"I don't think the press had perspective before 9/11 and even less now."

Okay, fair enough - that's the concept I was attacking.
2.23.2007 5:55pm
Elliot123 (mail):
Obvously, nobody even knows what a journalist is. I don't. Is it a class of people who want a privilege, or is it a class of action for which people want a privlege? If it's a class of people, we can't define it. If it's a class of action then it can apply to anyone.

Does anyone know how terms are defined in the various state shield laws? Do they differ from state to state?
2.23.2007 6:01pm
tsotha:
Rich B.:


2. More Federal Prosecutions. California has a state journalist-shield law. This would not be an issue in state court. By Federalizing more conduct, there is a corresponding Loss of Press Freedoms by moving cases to courts that don't have the shield laws.

I think this is a big part of it. But this isn't a loss just of press freedom, but of freedom in general, and it started long before 9/11.

I remember a time when you could open a checking account without showing ID and deposit a suitcase full of of cash. When drug laws were state laws, and the feds only got involved when drugs crossed state or international boundaries. When you could buy an airline ticket anonymously with cash. When "don't make a federal crime out of it" had some meaning.

Yes, as a society we've been sliding closer to tyranny. But it's been happening for a long time, and it's a result of the increased size and power of the federal government. I've never understood why statists on the left and right don't see this.
2.23.2007 6:56pm
Charley (mail):
Within the same time frame that this Wolf was getting the big media coverage there was a situation where a reporter was attacked by someone he was trying to interview. I believe it had to do with how the fellow was maintaining his properties. Anyway, the Journo got a pretty good whacking - all on tape. It was pretty widely shown for a few days.

What I really like about the contrast is that I'm darned sure that the video of the reporter getting beat up will be used to prosecute the person who attacked him. And it should be.

However, trying to get them to actually help the average citizen who is a victim is another thing - at least that is their story.
2.23.2007 7:04pm
Elliot123 (mail):
Tsotha,

I remember the Eastern Airlines shuttle between DC and NY. They had three planes parked on the apron. You just walked into the airport, out the door onto the apron, and up the steps into the plane. No security. No gates. No metal detectors. No Homeland Security. If it filled before scheduled takeoff, it just took off. Meanwhile, another plane pulled up in line. Then the flight attendant came down the aisle running credit cards to collect fares.

I truly miss that shuttle, and remember the free and easy atmosphere around travel. I wish we could do it again, but really don't know how we could. I don't think it's tyranny, just unfortunate change.
2.23.2007 7:16pm
Cathy (mail) (www):
From DPalmer upthread:


How can the value of the evidence be judged if it has not been viewed?


By that measure, how can the prosecution insist it needs it?

The answer has to do with exhaustion of alternate sources, that the prosecution would need to make out a case that there's no other way to get what it believes is in the evidence sought. It's not an insurmountable obstacle for the prosecution, but it limits its ability to demand things willy-nilly from journalists. Without forcing the prosecution to make this showing, it can pretty much always force journalists to turn over what they have and effectively co-opt them into being an investigative arm of the police. THAT'S what's going to cause the chilling harm to the press, and that's what needs to be avoided.
2.23.2007 7:46pm
JohnAnnArbor (www):

The answer has to do with exhaustion of alternate sources, that the prosecution would need to make out a case that there's no other way to get what it believes is in the evidence sought.

Whatever. The guy was there with a camera. Some bad, perhaps criminal stuff happened. He should be wanting to help solve the crimes with a copy of his footage. Instead, he's going for lefty/hooligan street cred by a BS claim of privilege. He's getting a little lesson: "the law applys to you, too, putz."
2.23.2007 8:23pm
DaveN (mail):
Whether there was a privilege or not, I am not sure this guy's tape is protected--and neither was the Court of Appeals:


Even if we applied a balancing test, we would still affirm. Wolf sold a portion of the videotape to several television stations, and posted portions of the videotape on his Website. The taped activities occurred entirely in public and did not occur in response to Wolf's prompting, whether by questions or recording. He simply videotaped what people did in a public place. Wolf does not claim that he filmed anything confidential nor that he promised anyone anonymity or confidentiality. Therefore, this case does not raise the usual concerns in cases involving journalists.
In re Subpoena, 201 Fed.Appx. 430, 433 n.2 (9th Cir. 2006). (I would supply the link except it is on Westlaw's site).

In other words, Wolf is hardly the post child for any kind of privilege, though his case has led to an interesting discussion. He is a witness, nothing more and nothing less.
2.23.2007 8:33pm
Cathy (mail) (www):
Though intellectual debate is rarely enhanced through the rhetorical usage of "whatever," you raise an important point: WHY was he there? Was he there just taking a video for his own private amusement, and then later tried not to turn it over? Or was he there from the outset with the intention of taking on a traditionally journalistic role - of learning about a matter (in this case, by filming it) for the purpose of disseminating what he discovered more widely. If it was the former, I agree, no privilege. But if it's the latter, which my understanding of the case suggests it is, then he was performing a typical journalistic function by being there filming, and it is that important function that warrants the protection.

By the way, "solving crime" does not necessarily equate to forcing journalists to turn over all evidence. Without journalists having a relatively free hand to discover wrongdoings, which they do not have if they are automatically going to be forced to divulge whatever they come up with, many will never be discovered in the first place.
2.23.2007 8:47pm
Elliot123 (mail):
Cathy,

Is a journalist necessary to discover wrong doing? Can others do the same? If they do, should they have privilege? If the benefit is the discovery of wrong doing, are we not better off with as many discoverers as possible?
2.23.2007 9:51pm
RIch B. (mail):
TDPerkins:

You can nitpick each point to death, but the main point remains. This Subpoena would never have been issued, enforced, and caused 6 months imprisonment in 1990 or 2000. It just did not happen. Now it does. This is a change, for all of the reasons stated above. Maybe you think this is a good change, or maybe you don't care one way or the other.

The point is that it is ridiculous to deny that a change has happened, and the change has resulted in less press freedom. As I said, maybe you think this is a great idea. I don't, but hey, different strokes, right?

I was merely challenging EV's denial that this change has even occurred, based solely upon the lack of a change in Supreme Court precedents.
2.23.2007 9:54pm
Ricardo (mail):
If there is a basic principle that journalists cannot be forced to turn over videotapes of criminal activity, that raises some pretty troubling questions. What if the tape showed a police officer beating up an innocent bystander? Or what if the tape contained exculpatory evidence? If a journalist does not enjoy protection from being forced to produce the tape in these instances, what is the principle that protects Wolf in this case?
2.23.2007 10:03pm
Cathy (mail) (www):
Eliot123 -

Discovery of wrongdoing has two parts - the discovery and the sharing of what's discovered. Simply discovering evidence of wrongdoing is not enough to be protected; having lots of laypeople run around and learn about crimes for their own private edification offers little societal benefit. But when that discovery is made with the intent to share it widely, that's something different because society does get to benefit in that case.
2.23.2007 10:32pm
David M. Nieporent (www):
Was he there just taking a video for his own private amusement, and then later tried not to turn it over? Or was he there from the outset with the intention of taking on a traditionally journalistic role - of learning about a matter (in this case, by filming it) for the purpose of disseminating what he discovered more widely. If it was the former, I agree, no privilege. But if it's the latter, which my understanding of the case suggests it is, then he was performing a typical journalistic function by being there filming, and it is that important function that warrants the protection.
What important function, Cathy?

The argument which applies to sources at least is logical: if someone isn't allowed to talk to a reporter anonymously, he may not talk at all and we may not learn something that's important for us to know. So it will have a chilling effect on whistleblowers.

But what possible "important function" is there in this case? You say that he was there "for the purpose of disseminating what he discovered more widely," but in fact the whole point here is that he's refusing to disseminate it at all. It's something people did publicly. They had no expectation of privacy -- legitimate or otherwise -- when they did it, and the reporter made no promise of privacy. What's the interest in a privilege here? It will have a chilling effect on people committing crimes in front of reporters? (Is that a bad thing?)


TDPerkins:
Judith Miller impeded an investgation her own paper bayed for--even in the light of the constitution, I call that an "own goal".
Bingo. The New York Times took chutzpah to a new level with that one. "We demand that you immediately conduct a witchhunt to find out who told us this information! But don't dare ask us!"
2.24.2007 12:24am
josh:
Oy, David, David. Stop being misleading.

"The New York Times took chutzpah to a new level with that one. "We demand that you immediately conduct a witchhunt to find out who told us this information! But don't dare ask us!"

That's not what the paper did. It demanded an investigation into the potential outting of a covert agent for political purposes.
2.24.2007 1:34am
David M. Nieporent (www):
That's not what the paper did. It demanded an investigation into the potential outting of a covert agent for political purposes.
The part about the "witchhunt" was me being colorful, obviously. The rest of what I wrote is true, however. You rephrased it to make it more vague and abstract so the Times' position wouldn't sound so absurd, but you didn't say anything different than I did.

(The best part, of course, was the Times pretending they didn't know who was telling them what they knew.)

The "potential outing" was not by revealing her name to a foreign government; it was by telling the press. The Times thought this was so horrible, a criminal act, and they did indeed demand an investigation. If it was criminal, then certainly they didn't think that the culprit was going to confess, did they? So how did they think the investigation was going to proceed?

More generally, you can't crusade against telling the press things for political reasons when your entire business model is based on having people tell you things for political reasons.
2.24.2007 2:04am
godfodder (mail):
Anyone who claims that the government has curtailed freedom of the press post 9/11 is either lying or is stunningly ignorant. Period. That such nonsense gets bandied about is nothing more than testimony to the level of paranoia that has engulfed the Left, post 9/11.

Yes, the NYTimes has gotten criticism (i.e., verbal disapproval!!-- ooohh, scary) for publishing highly classified military secrets during a time of war! What did you expect, universal approval? Other than that... what else is there? A big fat zero. There is the Plame idiocy, in which the Press' attempt to "get" somebody-- anybody!-- in the Administration backfired. And anyway, who is on trial again? Scooter Libby as I recall, not Schulzberger.

This whole vaunted "campaign against the Press" amounts to this-- not everybody agreeds with everything that the NYTimes does. Some of their choices are controversial. What is more, people who disagree with them actually speak up! Which is called the First Amendment, and with which I thought the Press agreed. No? I guess it is actually, "First Amendment for me, but not for you." Like the Dixie Chicks, the Left wants to be able to criticise-- fairly or unfairly-- whomever they want, but, if those people fire back... gasp! Why, that's not allowed! That's an effort to silence the Press!

The irony is transparent, and utterly juvenile.
2.24.2007 7:56am
Kim:
I don't believe the prosecutor is out of bounds, because Josh Wolf was not a journalist in the traditional sense. Before the protest he posted on his own blog that "the revolution would be televised" and described himself as a fellow anarchist. Would you argue for protection for "journalists" belonging to terrorist groups if they filmed attacks here as they are now doing when attacking U.S. troops in Iraq?
2.24.2007 11:23am
TDPerkins (mail):
Rich B wrote:

This Subpoena would never have been issued, enforced, and caused 6 months imprisonment in 1990 or 2000.


And he not only hasn't shown it would not happen, he's made no persuasive argument it should not happen.

Yours, TDP, ml, msl, &pfpp
2.24.2007 12:19pm
arbitraryaardvark (mail) (www):
There is a first amendment right to keep silent, as Lillian Hellman pointed out to the house unamerican activities committee. Talley v California, McIntyre v Ohio, Wooley v Maynard. There is a limited exception to this doctrine for court-compelled speech. I'm unclear if the exception arises out of the general powers of the federal government, or out of due process. Which clause authorizes the federal government to compel testimony? Commerce? necessary and proper? Here it is improper for the feds to draft journalists as spies.
Before the protest he posted on his own blog that "the revolution would be televised" and described himself as a fellow anarchist.
It sounds to me like Wolf has a pretty decent 5th Amendment right to be silent. Would that apply to the videotape? I'm not sure.
Wolf certainly is aware that there has been extensive police and prosecutor misconduct relating to this series of protects. In Seattle, protestors were recently awarded millions for having been the victims of a police riot during one of the G8 meetings. In indianpolis, the local anarchist bookstore was raided before one of these conferences,and is being represented by the aclu.
Wolf may have felt, correctly or not, that he was being asked to participate in the violation of civil rights of his friends and peers. Do we want to become an east germany, where everyone spied on everyone?
The SF situation is complex, in that the protests involved both protected speech of peaceful assembly,and illegal unpeaceful acts by a smaller minority of the participants.
Last time I went to an anarchist conference in SF, which was protected speech, there was violence on the day after I left, by some but not most, at a demonstration.
If I had videotaped the conference I attended, would that be discoverable? The issues aren't clear cut.
In Indianapolis I was once found in contempt of court for refusing to violate an attorney client confidence. I was ready to go to jail over it, but caved at the prospect of $100/day fines. (I had an ethical duty to protect my client, but also have an ethical duty to pay my bills.)
Overall, has government intrusions on civil liberty increased or decreased in the post- 9/11 era? I'm guessing decreased. I could be wrong - certainly I'm not objective.
During the reagan years, we heard a lot of talk about civil liberties being curtailed, when actually they were probably expanding at the time, on balance. But under Bush 43, it doesn't seem that things are getting better. Bush is governing much in the model of an LBJ - populist, ruthless, a conflicted personality putting ends over means. The presidency seems to attract that sort.
9/11 didn't start the pattern of the feds hassling the press
- that's along tradition in this country. But it's meaningful and relevant to point to 9/11 as a significant date in the hisory of civil liberties in this country,and the Wolf case is an illustrative example.
2.24.2007 2:39pm
JohnAnnArbor (www):

Wolf certainly is aware that there has been extensive police and prosecutor misconduct relating to this series of protects.

So, possible police misconduct ELSEWHERE = hey, it's OK to cover up evidence of attacks on police?

The only logic there is that of the immature anarchist poser ("Fight the power! Just because...he's there!").
2.24.2007 2:51pm
Ricardo (mail):
When people protest in public, they do so as a show of strength and confidence. A right to privacy at public protests makes absolutely no sense; the reason you are there is to be seen in public supporting a certain cause.

It sounds to me like Wolf has a pretty decent 5th Amendment right to be silent. Would that apply to the videotape? I'm not sure.

Wolf has a right against self-incrimination, not a right to withhold evidence concerning a violent felony committed by someone else. If everyone had a general "right to be silent," how would corrupt government officials or gangsters ever be prosecuted? It is difficult enough as it is without everyone being able to assert a right to not answer any questions when called to testify. People can and are coerced to testify against friends, neighbors and family members all the time in criminal and civil cases.

While it is clear that you, arbitraryaardvark sympathize with Wolf's agenda, what if he was a reactionary right-winger who videotaped police handing out a Rodney King-style beating to one of the protesters and refused to hand the tape over to the feds? Would you defend his right to silence in that hypothetical case? Why or why not?
2.24.2007 3:07pm