Freelancer Wolf released from jail pending emergency appeal of contempt
By Bob Egelko
San Francisco Chronicle, Sept. 2–Freelance journalist Josh Wolf was released on bail Friday from a federal prison where he had been held since Aug. 1 after challenging a grand jury subpoena that demanded outtakes of videos he shot at a San Francisco protest.
Wolf’s advocates, who included national journalist organizations, saw the Ninth U.S. Circuit Court of Appeals order as a sign that the court is prepared to reconsider the question of reporters’ right to protect confidential sources and unpublished material from compelled disclosure in federal court.
“It is an indication that the court views these as serious and substantial legal questions and that Wolf has a reasonable chance of prevailing,” said Theodore Boutrous, an attorney who filed arguments on behalf of the Reporters’ Committee for Freedom of the Press, the Society of Professional Journalists, the California First Amendment Coalition and Freedom to Write.
The appeals court is also being asked to examine the confidentiality issue by lawyers for Mark Fainaru-Wada and Lance Williams, Chronicle reporters who have refused to disclose their sources of grand jury testimony by Giants outfielder Barry Bonds and other athletes about the use of performance-enhancing drugs. A federal judge ruled Aug. 15 that the reporters must name their sources.
In Thursday’s order, Chief Judge Mary Schroeder and Judge Stephen Reinhardt said Wolf was entitled to bail because the government had not shown his appeal of a judge’s contempt-of-court ruling was frivolous or intended solely to delay the proceedings.
The court said another panel would rule on Wolf’s appeal of the contempt order while he is free on bail. If he loses the appeal, he could be sent back to federal prison until the grand jury’s term expires in July.
Wolf’s attorney, Daniel Siegel, said Wolf would be released on his own recognizance. He said Wolf was “determined to continue to fight for his rights as a journalist, for the rights of all journalists.”
“He indicated to me that he would stay there as long as necessary, because he was not going to comply with this improper grand jury subpoena,” Siegel said.
Wolf is the first California journalist to be jailed for withholding information since 2000. According to records kept by the Reporters’ Committee for Freedom of the Press, his prison stay is the longest in the state since reporter William Farr was jailed for 46 days in 1972 for refusing to disclose sources of a story he wrote for the Los Angeles Herald Examiner during the Charles Manson murder trial.
Wolf, 24, took videos of a July 2005 anarchist demonstration in San Francisco’s Mission District against an economic summit that was taking place in Scotland. During the protest, a police officer was hit on the head and suffered a fractured skull. A federal grand jury also is investigating the alleged attempted burning of a police car, which federal prosecutors say would be a federal crime because the Police Department receives money from Washington.
Some of Wolf’s footage was shown on local television. He refused to surrender his outtakes, claiming a journalist’s right to withhold unpublished material as well as confidential sources. Those rights are protected by California’s shield law, but that law does not apply in federal court.
U.S. District Judge William Alsup rejected Wolf’s constitutional defenses, denied bail and ordered him jailed until he agreed to turn over the videos.
Alsup noted that the U.S. Supreme Court had ruled in 1972 that reporters have no constitutional right to refuse to testify before a grand jury that is seeking evidence relevant to a criminal investigation.
Wolf’s appeal was endorsed by numerous news organizations and by the Society of Professional Journalists, which contributed $31,000 to defray his legal expenses.
He and his supporters argued that the grand jury subpoena was effectively forcing him to act as an investigator for the government. Wolf also said his videos contained no evidence of the alleged arson attempt.