"Loss of Press Freedoms in Post-September 11 America":

The executive editor of commentary at c|net news writes:

[A] San Francisco video blogger named Josh Wolf remains in the Federal Detention Center in Dublin, Calif., where he continues to set new records as this country's longest-serving journalist behind bars.

Wolf's family and friends understandably can think of little else. He's become the poster child for a variety of free speech advocates who say his imprisonment vividly symbolizes the loss of press freedoms in post-September 11 America. You might assume more people would be listening, but Wolf's plight has failed to capture the public's imagination....

Well, consider the details of Wolf's plight:

Wolf videotaped a July 2005 demonstration in San Francisco protesting a meeting of the G8 economic summit. The local district attorney wanted the unedited footage to assist a police investigation into violence which marked that night. The 24-year-old refused to turn over the full video to a grand jury.

Recall that all citizens must generally testify before grand juries -- or turn over tangible evidence to grand juries -- if they know things relevant to a criminal investigation. In 1972, 29 years before 9/11, the Court faced a journalist's claim that journalists have a First Amendment exemption from this duty, and rejected it. The Court left open room for some limited First Amendment protection for journalists, but quite limited; and since then journalists have repeatedly been required to testify before grand juries. And this is so even as to confidential communications to journalists, where journalists can most plausibly claim an analogy to the several narrow exceptions to the duty to testify (for instance, attorneys', psychotherapists', and clergy's right not to testify about confidential communications by their clients or parishioners).

It's hard to see how Wolf's case symbolizes "the loss of press freedoms in post-September 11 America." First, the rejection of the First Amendment arguments he makes long predates September 11. Second, to my knowledge there was never a time when the press had an established freedom not to testify, especially as to facts they observed in a public place. Third, even if "press freedom" should include the right to gather confidential information without the risk that one will be required to testify about it, I don't see a persuasive argument for why "press freedom" includes the right not to turn over publicly gathered video footage of a public demonstration. I certainly don't see any such argument in the c|net column.

Here, by the way, is what the Ninth Circuit wrote about this (some citations omitted):

The issue of whether journalists who are called to testify before grand juries are entitled to protection under the First Amendment is not new. The Supreme Court has declined to interpret the First Amendment to "grant newsmen a testimonial privilege that other citizens do not enjoy." Branzburg v. Hayes, 408 U.S. 665 (1972). The Court held, "the Constitution does not, as it never has, exempt the newsman from performing the citizen's normal duty of appearing and furnishing information relevant to the grand jury's task." Reporters have no First Amendment right to refuse to answer "relevant and material questions asked during a good-faith grand jury investigation."

In interpreting Branzburg, we have held that a limited balancing of First Amendment interests may be conducted only "where a grand jury inquiry is not conducted in good faith, or where the inquiry does not involve a legitimate need of law enforcement, or has only a remote and tenuous relationship to the subject of the investigation." Scarce v. United States, 5 F.3d 397, 401 (9th Cir. 1993) [EV: A Post-September 11 case or not? You be the judge]. The district court specifically found that none of the concerns articulated in Scarce is present in this case. We agree. None of the authorities cited by either Wolf or the amici requires the district court to conduct a balancing test where, as here, there is no showing of bad faith and the journalist refuses to produce non-confidential material depicting public events.

Wolf argues that the grand jury is being conducted in bad faith because he thinks that the burning of a police car is not a federal concern. The issue here is not whether prosecution of a given crime is in the government's interest. The Supreme Court specifically cautioned against the courts making such determinations. The grand jury in this case is investigating conduct related to a possible violation of 18 U.S.C. ยง 844(f)(1). The evidence in the record appears to support the investigation. Moreover, the video footage of the protest filmed by Wolf is directly relevant to the grand jury's investigation. Accordingly, the grand jury investigation is being conducted in good faith and the district court correctly refused to conduct a balancing test.

[Footnote: Even if we applied a balancing test, we would still affirm. Wolf sold a portion of the videotape to several television stations, and posted portions of the videotape on his Website. The taped activities occurred entirely in public and did not occur in response to Wolf's prompting, whether by questions or recording. He simply videotaped what people did in a public place. Wolf does not claim that he filmed anything confidential nor that he promised anyone anonymity or confidentiality. Therefore, this case does not raise the usual concerns in cases involving journalists. See Branzburg; Lewis v. United States, 501 F.2d 418, 423 (9th Cir. 1974) (holding "there was no request by the suppliers of the document and the tape to keep the information contained in them private or to withhold the articles themselves from examination. Even had there been such, the lesson from Branzburg, supra, is that such a request, either explicit or implicit, may not override the authority of the Grand Jury.").]

Wolf and amici next argue that we should recognize a common-law journalist's privilege pursuant to Federal Rule of Evidence 501. This argument has been squarely rejected. See Branzburg; cf. Scarce.

Wolf and amici also argue that the district court's order will have a chilling effect on Wolf's ability to gather news because groups will perceive him as being an investigative arm of the law. This argument has also been rejected by the Supreme Court. See Branzburg, 408 U.S. at 698 ("From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished. The existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press."). Our decision today does not alter the long-established obligation of a reporter to comply with grand jury subpoenas.

I wish I could give this as an example of the not uncommon loss of press perspective, and commitment to accuracy, in post-September 11 America. But there too I can see nothing quintessentially "post-September 11" about it.

Related Posts (on one page):

  1. Journalist's Refusal to Testify as Refusal to Be Government's "Lap Dog":
  2. "Loss of Press Freedoms in Post-September 11 America":
Journalist's Refusal to Testify as Refusal to Be Government's "Lap Dog":

The post below reminded me of something I wrote about this in 2004, about a particular -- and particularly unpleasant -- argument that some defenders of the journalist's privilege make. The incident I noted involved subpoenas related to the trial of Lynne Stewart, a lawyer who helped her client -- a convicted terrorist leader -- communicate with his followers:

"Our sources will dry up if sources . . . think that anything they tell us will be repeated against them in court. Why would you speak to a reporter if those words are going to be read back against you in court?" said George Freeman, in-house counsel for The New York Times.

"We are supposed to be the watchdog of our government, not its lap dog, so we shouldn't be in bed with it testifying," Freeman said....

Isn't this rhetoric about not being the "lap dog" of the government or "in bed with" the government pretty appalling? All of us, as citizens (or even noncitizens), generally have a duty to testify when called on to do so. That duty is part of the legal system's attempt to learn the truth, and provide justice to the government and to individuals alike.

This duty applies even when it may deter some constitutionally protected speech. If I talk to you about something, or e-mail you something, and that becomes relevant to some civil or criminal case (e.g., because it's relevant to determining my actions or intentions), you can be compelled to testify about it. This may well deter me from saying certain things to you: A businessperson, for instance, might be reluctant to express potentially racist, religiously hostile, or sexist views to people, for fear that those views may be discovered and used against him in a discrimination case.

Private conversations about politics are just as constitutionally protected as media reporting, and just as valuable; people's attitudes are often molded as much about what they hear from their friends and acquaintances as by what they hear from strangers in the media. Yet we accept that the duty to testify may well deter such conversations -- it's part of the price we have to pay for getting at the truth in criminal trials.

Nor does a citizen become a "lap-dog" of the government, or get "in bed with" the government, because he does his duty (whether voluntarily or involuntarily), and helps the jury learn the truth about what happened. It seems to me arrogant, contemptuous, and contemptible for media representatives to suggest otherwise -- to suggest that there's something base or some sort of sell-out in a person's responding to a subpoena.

I should stress that there are sensible arguments for a limited journalist's privilege, especially a common-law privilege (like the psychotherapist-patient or civil attorney-client privilege) rather than a constitutional one; and the desire to encourage confidential statements to reporters, which can (sometimes) help enlighten the public and (sometimes) even enlighten law enforcement about crimes and scandals that law enforcement might otherwise not have learned about, and might effectively investigate even without subpoeaning the reporter. I speak here only about a particular argument, which strikes me as unsound and as high-handed on the part of the pro-media-rights forces.

Related Posts (on one page):

  1. Journalist's Refusal to Testify as Refusal to Be Government's "Lap Dog":
  2. "Loss of Press Freedoms in Post-September 11 America":