Freelancer's imprisonment tied to landmark press ruling

by Peter Blumberg
When he took to the streets last year to film a clash between police and anarchist demonstrators, Josh Wolf may have had no idea he was walking into contemporary journalism's most hazardous predicament.

Now that he's been imprisoned for refusing to cooperate with a criminal investigation, the San Francisco freelance videographer may feel as if he's stepped into a time warp.

Rewind to 34 years ago, when a case out of San Francisco led the U.S. Supreme Court to issue its landmark First Amendment ruling limiting the rights of reporters to protect confidential sources.

William Alsup, the federal judge who last week incarcerated Wolf, was then a clerk with the high court, fresh out of Harvard Law School.

Here's the twist: Alsup's boss, Justice William O. Douglas, came down on the side of freedom of the press, arguing that the government has no business trying to shake information out of a journalist.

But all these years later, Alsup sided with the government that news reporters shouldn't be treated differently from anyone else when they have evidence of a crime that the federal government wants.

In this case, prosecutors have been trying since February to get Wolf to hand over all the footage he recorded of a July 2005 protest -- only part of which was broadcast on local TV -- because they think it might show who set fire to a police cruiser in the Mission District.

How did it come to this? Alsup didn't show much sympathy for Wolf's principled stand against turning himself into "a surveillance arm of the government." In a recent court hearing, the judge asked why a journalist supposedly devoted to the public's right to know wants to keep secrets.

"Every person, from the president of the United States down to you and me, has to give information to the grand jury if the grand jury wants it," Alsup said last week just before finding Wolf in contempt and turning him over to U.S. marshals.

Whatever his personal views, Alsup may have felt he had little choice but to come down hard on Wolf.

The high court's 1972 decision in a fiercely split 5-4 vote declined "to grant newsmen a testimonial privilege that other citizens do not enjoy." Branzburg v. Hayes, 08 U.S. 665.

That ruling remains the only time the court has considered the use of a reporter's privilege -- and it has haunted journalists ever since, including the New York Times reporter jailed last year in the case of the White House leak about the CIA agent.

A lower court judge such as Alsup is in no position to disagree with the Branzburg ruling -- even if he happened to clerk for a justice who wrote a passionate dissent.

At the same time, it is somewhat ironic that Wolf, 24, is now paying the price for a losing battle that the New York Times waged with San Francisco FBI agents a decade before he was born. That fight stemmed from the nation's leading newspaper assigning its first African American national correspondent, Earl Caldwell, to tag along with the Oakland-based Black Panthers at the height of their prowess as violent social revolutionaries.

Caldwell, who conducted extensive interviews with Panther leaders, suddenly found himself subpoenaed for his unpublished notes.

Although the 9th U.S. Circuit Court of Appeals voted to order the FBI to back off, Caldwell's role in journalistic history was cinched when an associate justice on Warren Berger's Supreme Court, William H. Rehnquist, cast the deciding vote to enforce the subpoena.

For Wolf, not having the law on his side is only part of the story. The other problem is that he put himself in the wrong place at the wrong time.

Fast forward from Caldwell's refusal to snitch on the Panthers in the turbulent early 1970s to the year 2003.

That's when the Bush administration's top lawman in San Francisco, U.S. Attorney Kevin Ryan, demonstrated just how serious he is about investigating social activists accused of violence against police.

Ryan was so determined to crack the unsolved murders of two officers in a 1970 bombing and a 1971 shooting at two neighborhood police stations that he rounded up aging Black Panthers from all over the country to march them in front of a grand jury.

News accounts from the time said Ryan was acting with jurisdiction under a terrorism provision of the USA Patriot Act even though the bombing was not on federal property.

That investigation remains shrouded in secrecy.

But at least three old Panthers ended up doing short jail stints for contempt because they refused to answer questions before a state grand jury.

This time around, Ryan's rationale for investigating alleged vandalism of a local squad car -- and his demand to see Wolf's video footage -- is that police receive federal funding.

Wolf is particularly unlucky that he's been hauled into federal court because reporters have better protections against subpoenas in state court. One legacy of the Caldwell era is that California and many other states adopted statutes that shield journalists from having to divulge legitimately gathered information to law enforcement authorities.

To be sure, Alsup is holding Wolf to the same standard that he applies to nonjournalists. Alsup is the judge who recently jailed Barry Bonds' trainer, Greg Anderson, on a contempt charge for refusing to answer questions in a grand jury probe of the steroids scandal.

As a journalist, I am troubled by the spate of cases nationwide in recent years in which government officials have taken the extraordinary step of jailing reporters unwilling to divulge information.

In Wolf's case, Alsup didn't seem to care much that Ryan allegedly demanded the video footage without getting special clearance from the Justice Department to subpoena a reporter.

This trend is especially alarming for reporters covering low-profile stories without the backing of high-powered lawyers, because a refusal to cooperate in any criminal investigation is punishable by jail time regardless of how grave the crime is.

The exact role that Wolf played at the anarchy demonstration is somewhat blurry on account of his having asserted the constitutional right against self-incrimination while refusing to give his videotape to Ryan's office.

But the fact remains that for refusing to assist in the investigation of a single act of vandalism he faces possibly a worse fate than Judy Miller, the New York Times reporter who spent 85 days in jail last year after refusing to assist federal prosecutors probing the White House over the public outing of a CIA agent's identity in violation of national security law. Wolf could be imprisoned until next July if the grand jury is still investigating the case of the burned police car.

However Wolf's case play out, it is heartening to know that Alsup is committed to full disclosure on both sides of the journalist-government fence.

Alsup is presiding over a case brought by the American Civil Liberties Union to force the Bush administration to release information about its secret surveillance of anti-war activists at the UC Berkeley and Santa Cruz campuses.

When the ACLU complained recently of foot-dragging by the feds on a freedom of information request, Alsup ordered the Department of Homeland Security to speed things up, citing the strong public interest in the subject matter.

If a judge is willing to take extreme measures to help prosecutors get a peek at a journalist's private recording of anti-government activists, it's good to know the same judge is looking out for public access to public records of the government spying on college kids.