Josh Wolf Is Wrong

A word to my fellow lefty bloggers: stop defending Josh Wolf!

For those of you who don't know who Josh Wolf (pictured at left) is, he's a 24-year-old California blogger and "freelance journalist" (which could mean anything) who has been imprisoned on civil contempt charges for 170 days now, which is the longest for any "journalist" in U.S. history.

Why is Wolf in prison? He videotaped a 2005 protest at a G8 economic summit in San Francisco, portions of which he aired on his website, during which a police car was vandalized and a police officer injured. Federal prosecutors subpoenaed the videotape as part of their efforts to identify the protesters involved in the unlawful acts.

Now the liberal blogger community is all up in arms about Wolf, making him a cause celebre' and urging folks to support his defense fund, yada, yada, yada.

What is the basis of Wolf's defense? Once commentator put it this way: "Wolf correctly refuses to surrender unaired video footage because journalists must remain independent and never become arms of law enforcement." (This commentator, among others, wants an absolute shield law for all journalists.)

We don't buy that. Nor do we think our fellow liberal bloggers would be very interested in this but for that the particular case involves left wing protesters. If, instead, Wolf was a conservative blogger who had videotaped Ku Kluxers beating up civil rights protesters, we don't think any of our friends would be wasting their type on the case.

[By the way, the judge who threw Wolf into jail is not exactly a right winger. He is Judge William Alsup, nominated by Bill Clinton at the suggestion of Senator Barbara Boxer. Alsup clerked for liberal Supreme Court Justice William O. Douglas and did civil rights work in the south before moving to California and becoming a successful lawyer. We suspect that Judge Alsup is keenly aware that the facts of this particular case could just as easily involve a scenario like the once sketched above, with prosecutors seeking material from some right wing group like the KKK.]

So let's separate ourselves from the particular facts for a moment and examine the issue more dispassionately. First, let's say, for the sake of argument, that journalists should be completely shielded from demands from law enforcement authorities to provide evidence in criminal investigations. Is Wolf a journalist? Tough question.

There are an estimated 25 million bloggers in the U.S. today. Shielding them all as journalists would be unreasonable. Of course, there's a plausible case that Wolf is not just a "blogger"--that his activities go further. By the same token, he's not an easy case--someone employed by a traditional media organization. Ultimately, even with a shield law, courts in cases such as this would have to make time-consuming determinations of just who is a "journalist" entitled to protection. Is Ann Coulter a journalist? Not in our book.

Put that aside, however, as we have a bigger problem with the notion that "journalists must remain independent and never become arms of law enforcement."

These are two different concepts that are not mutually exclusive. If all journalists, of all stripes, colors and ideologies, are subject to the occasional requirement that they turn over potential evidence in a case, that doesn't mean they aren't "independent." Any citizen who has evidence in a criminal matter and who fails to respond to a valid court ordered request for such information, or who destroys it, can be subject to charges of obstruction of justice and other related charges, and can be jailed for civil contempt. We don't see why journalists somehow lose their "independence" by being subject to such laws.

That said, we support NARROW exceptions for journalists, mainly related to protection of confidential sources. Even the confidential source privilege shouldn't be absolute, but their are good policy reasons for having such a privilege--primarily that it enhances the ability of the press to engage in investigative functions, whereas law enforcement authorities have their own investigative tools available--they usually don't need to force disclosure of the names of confidential sources to do their jobs (might make it easier, but that's not the point).

Indeed, the Scooter Libby trial is a good case in point about the obligation of citizens to cooperate in criminal probes. Libby is on trial for allegedly lying to investigators, not for "leaking" classified info. He should have told the truth and let the chips fall where they may. If he didn't tell the truth, he deserves jail time.

Now, what about the issue of journalists becoming "arms of law enforcement"? Well, turning over a videotape of a demonstration does not make Josh Wolf an "arm of law enforcement." The tape will show what it shows. It may or may not be useful to the investigators. For all we know, it may show that the injuries sustained by the San Francisco policeman were not caused by any protesters, or that they were caused by Bill O'Reilly or Rush Limbaugh hoping to cause trouble for the protesters.

To be sure, Josh Wolf claims that his videotape doesn't show any of the activity that prosecutors are investigating, and says he even offered to let the judge view the tape to see for himself. Wolf contends that the prosecutors are just on a fishing expedition to identify "activists" in San Francisco.

Sorry, we can't write special rules for every case, forcing judges to review the evidence and do the prosecutors' jobs. As for the claim that prosecutors are really just digging up dirt on activists, that's paranoia. We really doubt they have time for such silliness, and Judge Alsup is correct to let the prosecutors do their job absent some real EVIDENCE--not suspicion--of some other motive.

Now, put yourself in the shoes of the injured policeman's family. Here he was doing his job in a mostly peaceful protest by mostly good people who have a legitimate beef about globalism. Then along comes a small minority--maybe just one or two--of people who take advantage of the protest to destroy a police car and injure a police officer. These people give the rest of the protesters a bad name. If they've stepped over the bounds from political protest to criminal activity, they should be jailed.

In any event, turning over unaired video footage of an event where a crime occurred does not make journalists--of any stripe--into "agents of law enforcement." Instead, it makes them typical good citizens.

We have no sympathy for Josh Wolf. He's embarked on a wrongheaded cause. He should give it up and do the right thing--turn over his videotape.