What the anarchist blogger case means to the rest of you globules

by Kevin Fayle
Sep 15
Gonna burn this city

Valley Justice The good times just keep rolling for blogger Josh Wolf.

A panel of the Ninth Circuit has upheld, in an unpublished ruling, a contempt order against him for refusing to comply with a grand jury subpoena calling for the production, among other things, of a video he shot during an anarchist rally in San Francisco last July. Wolf is currently free on bail, and plans to request a re-hearing of the appeal by the entire Ninth Circuit.

The party started for Wolf when he filmed the anarchist protest, which allegedly resulted in the torching of a police car by one or more participants. The Feds initiated a grand jury investigation into the events, and the grand jury called on Wolf to give testimony and produce evidence about the dust-up. Wolf sold some of the footage to news networks and published a bit on his blog (you can view it here), all of which was available to the grand jury. The Feds, however, want the entire unpublished video as part of the investigation.

Wolf declined to answer the subpoena, arguing that requiring journalists to turn over their unpublished work product would effectively turn them into spies for the government and have a chilling effect on their ability to report the news. The district court held him in contempt, sent him to the slammer and this appeal ensued.

In the appeal, Wolf argued that the subpoena violates his First and Fifth Amendment rights. Specifically, Wolf contended that a court must balance the government's law enforcement interests against a journalist's right to report the news without government intrusion before issuing a grand jury subpoena. The Ninth Circuit panel, citing Supreme Court precedent, rejected this argument. In a 1972 ruling, the Supreme Court held that journalists have no privilege to avoid grand jury testimony, and must turn up to give testimony and produce evidence right alongside the rest of the plebeian masses.

Well, it might not be the freshest precedent, but it's binding until overruled, so we journos remain susceptible to grand jury subpoenas just like everyone else.

But here's where it gets interesting: the Ninth Circuit opened up the possibility in a 1993 ruling of a limited balancing of First Amendment interests where a grand jury investigation is conducted in bad faith. So if the grand jury inquiry is only a pretext for some other aim, the court should balance the reporter's right to report against the government's power to enforce the law. Now's when you have to start asking yourself: why are the Feds investigating the supposed arson of a city police car by a bunch of anti-war anarchists? Hmmm . . . maybe they just want to take them for a black helicopter ride, eh?

The Feds claim that the police vehicle was partially purchased with federal money, therefore any arson involved a piece of federal property. This should frighten pedestrians since jaywalking on a street paved with the help of federal highway funds could now end up landing you in federal prison.

A police officer was also injured by a blow to the head that day - a serious matter in any jurisdiction. But an assault on a city police officer is definitely a state, not federal, concern, and the California reporter shield would protect Wolf from contempt charges if he refused to testify before a state grand jury (more on that later.) So, Wolf contends that the arson charges (which are dubious beyond the initial question of jurisdiction: the local ABC affiliate reported that the damage report for the police cruiser listed only a broken taillight and no fire damage) only arose as a means to compel the production of evidence that would otherwise be unavailable to the state prosecutors and federal anti-war intimidators. Wait - did we say that out loud?

Intriguingly, in the footage posted on Wolf's blog, a uniformed man seen pushing a protester appears to claim Federal affiliation, which would suggest that the Feds were interested in the anarchist rally even before the arson investigation commenced. The subpoena for Wolf's testimony was also served on him by a Special Federal Officer of the Joint Terrorism Task Force, which seems like a pretty heavy hitter for an investigation into a fire that (if it really occurred) was most likely some 17 year-old's ill-conceived attempt to impress his radical girlfriend. Anyone interested in connecting the dots at home might come up with a pretty intriguing picture.

In any event, the Ninth Circuit panel appears to prefer color-by-number, and washed its hands of the issue of whether the investigation of the crime was truly a matter of federal concern. It rejected the bad faith argument, refused to conduct a balancing test of the competing government and First Amendment issues, and affirmed the order of contempt.

Moreover, the court announced that Wolf's arguments would fail even under the balancing test since Wolf had sullied himself by selling portions of the video to news outlets, and since he had merely recorded public events instead of prompting events through questioning. Solid reasoning, except for the fact that Wolf's publicly released content contains interviews of rally participants. But we digress . . .

The court noted (footnoted, to be exact) that the California reporter shield would not even protect Wolf if the contempt order was issued by a state court, since he was not connected with or employed by "a newspaper, magazine or other periodical publication." Now, never mind that this pronouncement came one footnote before the court discussed how Wolf had sold footage to local news channels. What's more interesting as far as we're concerned, is that it ignores a recent California state court decision that extended the reporter shield to cover news-oriented blogs and bloggers, regardless of any affiliation to traditional media.

That decision, of course, is O'Grady v. Superior Court, aka the Apple suit against Apple industry bloggers. In that case, the Superior Court judge ruled that people who post news content onto websites fall under the reporter's shield as long as the purpose of the website is to disseminate news to the public. The court relied on the term "other periodical publication" contained in the shield's language to justify its decision, and declared that a news blog would qualify since it fit the core purpose of the law, which is to protect the news-gathering abilities of reporters and their publications.

Some commentators have questioned whether Wolf's close ties to the anarchist group would remove him from the reporter category. But just because a food critic likes to eat, is he less of a reporter? Well, maybe, but that's only based on our personal experience of food critics . . .

Anyway, the real issue is how this Ninth Circuit decision will affect any future rulings on the reporter shield by a California state court. After all, whither goeth California, goeth the nation.

Since the Ninth Circuit decision was unpublished, it has basically no precedential effect. So, technically, it won't affect things at all. And since the Supreme Court of California has yet to weigh in on the issue of blogs and the reporter's shield, there's no real conflict between the two interpretations of the shield. You can bet that members of the California judiciary are paying attention to this one, however, and the legal opinions of a Ninth Circuit panel will definitely influence how jurists look at the issue in the future. When the issue finally makes its way to the California Supreme Court - and it will - bloggers may just be pushed out from under the shield's protection.

And that will mean that a lot more of the Josh Wolfs out there will be getting acquainted with the prison system very soon.

Kevin Fayle is an attorney, web editor and writer in San Francisco. He keeps a close eye on IP and International Law issues