Cameraman jailed for not yielding tape
Journalists' rights: Courts have recognized legal protections for reporters, but judge says they do not extend to grand jury investigations

Bob Egelko, Chronicle Staff Writer  Reprinted from San Francisco Chronicle

Wednesday, August 2, 2006

A freelance journalist and political activist was sent to federal prison Tuesday and could be held for nearly a year after refusing a grand jury's demand that he turn over unaired videotapes of a 2005 anarchist demonstration in which protesters clashed with San Francisco police.

U.S. District Judge William Alsup found Josh Wolf, 24, of San Francisco in contempt of court for failing to comply with a subpoena that the federal grand jury issued Feb. 1. Alsup rejected Wolf's claim that a reporter has a right to withhold unpublished material, and he said federal prosecutors were seeking the videos for a legitimate investigation into a possible crime -- the attempted burning of a San Francisco police car.

"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,'' the judge said at the end of a 2 1/2-hour hearing in federal court in San Francisco.

Wolf and his lawyers contend that federal authorities are less interested in the alleged arson than they are in disrupting the legitimate political activities of anarchist groups. Forcing Wolf to turn over his videotapes is a way of keeping the media from reporting dissidents' point of view, they said.

Unless a journalist's right to withhold unpublished and unaired material is recognized, "we're not going to have Mr. Wolf or any reporters covering protests," attorney Jose Luis Fuentes told Alsup. "Confidential sources are not going to come forward. They (journalists) are going to be viewed as investigative arms of the government."

Wolf was taken into custody by U.S. marshals after the hearing and was sent to the federal prison in Dublin. He could remain there until the grand jury's term expires in July 2007 unless he turns over the tapes.

Wolf describes himself on his Web site as an activist and anarchist. The videos sought by the grand jury were of a demonstration that Wolf shot on July 8, 2005, in the Mission District, in which a few hundred people marched in protest against the Group of Eight economic summit that was taking place in Scotland.

A police officer suffered a fractured skull in a confrontation with a splinter group of marchers, several store windows were broken, and someone allegedly tried to set a police car on fire by sliding a mattress underneath and setting it ablaze.

Wolf posted some of the videos on his Web site and sold that footage to local television stations. None of the footage showed any crimes being committed. It was posted Tuesday evening at www.joshwolf.net/grandjury.

Federal prosecutors demanded the rest of the tapes, saying they might contain evidence of attempted arson of a police cruiser -- which Wolf says they do not. Trying to burn a police car would constitute a federal crime, federal authorities argued, because the Police Department receives money from Washington.

Citing the secrecy of grand jury proceedings, federal prosecutors have never explained their interest in the possible burning of a police car, which local authorities typically would investigate. No local charges have ever been filed in connection with that incident.

In ordering Wolf sent to prison, Alsup said the case had nothing to do with a journalist's confidential sources.

"There's no Deep Throat out there trying to protect his identity," the judge said. Noting that the events Wolf photographed all took place in public, Alsup asked, "Where does Mr. Wolf get to decide what will or will not be made public, when he never made a promise to anyone?"

Alsup was a Supreme Court law clerk when the court ruled in 1972 that the First Amendment does not shield reporters from having to testify before a grand jury. On Tuesday, he acknowledged that some federal courts have since recognized certain legal protections for journalists. But he said none of those cases involved grand jury investigations, in which the courts have repeatedly upheld demands for testimony.

Wolf's case, Alsup said, is "a slam dunk for the government."

Alsup denied defense requests to free Wolf on bail or stay the case for 10 days while Wolf challenges the contempt order in the Ninth U.S. Circuit Court of Appeals.

Carlos Villareal, executive director of the San Francisco chapter of the National Lawyers Guild, said Wolf had told his attorneys before being taken to jail that he was "thinking about it, the implications, the costs and benefits" of continuing to withhold the videos but had not changed his mind.

California, like most states, has a shield law allowing reporters to keep their sources confidential. The law, one of the nation's strongest, protects journalists from being held in contempt of court for refusing to identify confidential sources or produce unpublished material unless the information is needed to preserve a defendant's right to a fair trial and is unavailable elsewhere.

There is no federal shield law, however, and the state law does not apply in federal court.

The Bush administration has argued that reporters are adequately protected by Justice Department guidelines, which state that subpoenas against journalists must be approved by the attorney general and should be issued only after prosecutors have pursued other sources of information. But when Wolf's lawyer said the government had failed to show that it followed those standards in his case, Assistant U.S. Attorney Jeffrey Finigan argued -- and Alsup agreed -- that private citizens have no right to enforce the guidelines.

The case arises against a backdrop of increasing legal action against reporters.

The New York Times' Judith Miller was jailed for 85 days last year for refusing to reveal the source of information that Valerie Wilson, the wife of Bush administration critic Joseph Wilson, was a CIA agent. The administration is investigating leaks to the Times and the Washington Post and won a federal appeals court ruling in New York on Tuesday allowing prosecutors to examine telephone records of Miller and another Times reporter. Valerie Wilson is often referred to by her maiden name, Valerie Plame.

On Friday, another federal judge in San Francisco is scheduled to consider the Justice Department's request for contempt-of-court orders against two Chronicle reporters, Mark Fainaru-Wada and Lance Williams, for refusing to reveal their confidential sources of grand jury testimony. The reporters published articles and a book about steroids in sports, based in part on closed-door testimony by the Giants' Barry Bonds and other athletes.

"Over the last five years, or even more, federal courts have been less and less likely to find a First Amendment justification for a reporter's privilege," said Gregg Leslie, legal defense director of the Reporters Committee for Freedom of the Press. "That has made prosecutors more likely to resort to subpoenas.

"Judges aren't aware of the role reporters play in public controversies," Leslie said. "In these times, courts want to know who committed crimes."

Journalists behind bars

Journalists who have been jailed or detained in recent years for refusing to disclose information to the courts:

-- Brian Karem, San Antonio. TV reporter subpoenaed by defense and prosecution in 1990; jailed for 13 days when he refused to reveal names of people who arranged a jailhouse interview. Released when sources came forward.

-- Libby Averyt, Corpus Christi, Texas. Newspaper reporter subpoenaed for information in 1990 about jailhouse interview. Jailed over a weekend; released when judge convinced she would never turn over the unpublished information sought.

-- Tim Roche, Stuart, Fla. Newspaper reporter subpoenaed in 1990 to reveal source for leaked court order that was supposed to have been sealed. Served 18 days for criminal contempt.

-- Sid Gaulden, Schuyler Kropf, Cindi Scoppe, Andrew Shain, Columbia, S.C. Newspaper reporters jailed for eight hours in 1991 when they refused to turn over information from unpublished conversations with a state senator on trial for corruption. Released for appeal, which they lost, but trial was over.

-- Felix Sanchez and James Campbell, Houston. Newspaper reporters locked in judge's chambers for several hours in 1991 after refusing to stand in the back of courtroom and identify possible eyewitnesses to a crime. Appeal successful.

-- Lisa Abraham, Warren, Ohio. Newspaper reporter jailed for nearly a month in 1994 for refusing to testify before a state grand jury about a jailhouse interview.

-- Bruce Anderson, editor of Anderson Valley Independent in Ukiah (Mendocino County), jailed on contempt charges for 13 days in 1996 for refusing to turn over original letter to the editor received from a prisoner. He tried to turn over the letter after a week, but judge refused to believe it was the original because it was typed. After another week, judge accepted that the letter was the original.

-- David Kidwell, reporter for the Miami Herald. Found in criminal contempt in 1996 and sentenced to 70 days for refusing to testify for prosecution about a jailhouse interview. Served 14 days before being released on own recognizance after filing federal habeas corpus petition.

-- Timothy Crews, Sacramento Valley Mirror editor and publisher in Red Bluff, served a five-day sentence in 2000 for refusing to reveal his confidential sources in a story involving the sale of an allegedly stolen firearm by a California Highway Patrol officer.

-- Vanessa Leggett, Houston. Author researching "true crime" book jailed for 168 days by federal judge in 2001 for refusing to disclose her research and the identities of her sources to a federal grand jury investigating a homicide. Leggett was freed only after the term of the grand jury expired. A subsequent grand jury indicted a suspect, and Leggett may again be subpoenaed during his murder trial.

-- Jim Taricani, Providence, R.I. In February 2001, television reporter aired portion of a videotape showing a Providence official accepting a bribe from an undercover FBI informant. The tape was sealed evidence in an FBI investigation into corruption by city officials. Taricani refused to reveal his source, was found in criminal contempt in 2004, and served four months of home confinement. His TV station paid $85,000 in fines.

-- Judith Miller, New York Times reporter jailed for 85 days in 2005 for refusing to testify against news sources in the investigation into leaks of a CIA operative's name by White House officials. Released when she agreed to provide limited testimony to the grand jury about conversations with vice presidential aide Lewis "Scooter" Libby without revealing her other sources. Libby gave his permission first.

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