Blogger-Journalist Josh Wolf must be the first journalist to go to jail to protect evidence he didn’t have.
By Peter Scheer
That journalist Josh Wolf is out of jail is a good thing. No 24-year-old should rot in jail for seven and a half months–the longest incarceration of a journalist in American history–for doing what he thinks is right (even if he’s wrong). But now that Wolf’s protracted legal battle is finally and thankfully over, one may reasonably ask: Was all this really necessary?
Journalists have an obligation–not a privilege or right, but an obligation–to resist government attempts to force them to disclose evidence that the government wants for an investigation or prosecution, but that they possess as a result of their reporting.
This obligation, which derives from a journalist’s duty to the public, is greatest in the case of a confidential source. The obligation also applies to evidence that, although not furnished by a confidential source, is nonetheless nonpublic and obtained by means that would be jeopardized if the evidence is given to the government.
Wolf did not have a confidential source–that much has always been clear about his case. But what was not clear–and what we know today only because of Wolf’s agreement with federal prosecutors–is that he never had any evidence at all.
Wolf’s video outtakes of the 2005 street demonstration, disclosed to the government simultaneously with their posting on the internet last week, reveal nothing about the incidents that prosecutors are investigating: injury to a police officer and alleged damage to a police car. Moreover, in a sworn statement given in lieu of testimony to a grand jury, Wolf says he knows nothing about those incidents, either.
If Wolf, in fact, never had any evidence of use to the government, his case never should have become a constitutional cause celebre. The First Amendment is about real disputes between journalists and government, not imagined or hypothetical ones. The time for a journalist to go to the mat over a grand jury subpoena–to the point of going to jail rather than comply with a court order enforcing a subpoena–is when a journalist has a confidential source or other evidence that she is duty-bound to protect.
Former New York Times reporter Judith Miller went to jail because she had a confidential source in the Plame investigation–not because she might have had a source, or because the government mistakenly believed she had one. San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada were threatened with jail because they had a confidential source. Ditto Matthew Cooper of Time magazine.
Indeed, Wolf is almost certainly the first journalist in the United States to go to jail to protect evidence he didn’t have.
Internal policy guidelines governing US Attorney’s offices require that prosecutors negotiate with journalists about access to evidence before attempting to enforce a subpoena. The reason for this requirement is to allow journalists, without compromising First Amendment principles, to simply explain that they do not have the evidence that the prosecutors want. For every press subpoena case you’ve heard about, a dozen more are quietly resolved through this process.
The issue is not, as some have cast it, whether Wolf, as a blogger and freelance videographer, is a true journalist, or whether his political activism disqualifies him from being a journalist. He is a journalist, in a long tradition of activist-journalists. And if Wolf had had a confidential source, or if his outtakes had shown demonstrators beating a police officer, his assertion of a First Amendment defense would have had the same force as a veteran reporter for any mainstream news organization.
In retrospect, Wolf’s jailing looks like a huge misunderstanding in which prosecutors assumed, incorrectly, that Wolf possessed relevant evidence, while Wolf believed, erroneously, that he had a responsibility to go to jail even if he had no relevant evidence. Federal district judge William Alsup may have suspected as much when he took the highly unusual step of ordering Wolf and the government to submit to mediation, a process that led to the agreement that freed Wolf. All parties are probably thankful for the judge’s intervention.
Peter Scheer, a lawyer and journalist, is executive director of CFAC.