Smoke Screens

In another whack at our Civil Liberties, a Federal Court in San Francisco, rejected an appeal from a blogger who has refused to turn over a videotape he shot of a protest last summer. A conservative three-Judge panel of The Ninth Circuit, (the August Motions Panel) reaffirmed a contempt charge against free-lance journalist Josh Wolf, seemingly contradicting its image as one of the more “liberal” courts, at least considering the high numbers of decisions reversed by the Supreme Court. The decision was unpublished and the judges deemed the issue in the case too easy to merit oral argument.(More on this soon).

Josh’s trouble with the government began last summer when he was videotaping some of the more aggressive protests at a protest in San Francisco timed to coincide with the Group of Eight economic summit in Scotland. Purportedly he took some video which would reveal the identity of some of the protestors, one of whom is suspected of placing a smoke-bomb or other device underneath a car.

Josh’s lawyers unsuccessfully argued that the blog was a form of journalism and therefore protected under the First Amendment. I read the reply brief which is published on Josh’s blog. Not a bad piece of work: “[A]a fair reading of Supreme Court precedent requires a finding that there is a “substantial connection” between the information sought and the criminal conduct under investigation before a witness may be held in contempt for refusing to answer question (sic) that implicate First Amendment rights. Bursey v. United States (9th. Cir. 1972) 466 F.2d 1059, 1091, overruled on other grounds, In re Grand Jury Proceedings (9th Cir. 1988) 863 F.2d 667, 669-670.” Josh’s counsel pointed out, quite reasonably in my opinion, that in order for the lower Court to determine whether the substantial connection exists they have to actually watch the video, which they didn’t. Clearly, holding Wolf in contempt without even making a deminimus attempt to determine whether any nexus existed between the video and the government’s investigation was an abuse of discretion by the lower Court.

The sole federal offence under investigation by the government involved allegations that unknown persons damaged, or attempted to damage, “by means of fire or an explosive,” a police vehicle owned by an entity receiving federal funds under 28 U.S.C. §844(f)(1). In other words this is a case of vandalism involving a police car. Except for the fact that it took place at a rally to protest globalization. Oh, and the vehicle sustained no apparent damage. Anyone see some selective prosecution here? To be fair, the initial investigation was apparently launched because of the aggravated assault on a San Francisco police officer, but the grand jury proceedings solely related to the “damage” to the car. The FBI assisted the investigation under the Joint Terrorism Task Force, which is now apparently assigned to investigate political protests.

In their amicus brief, the ACLU noted that every television and online journalist with a video camera who covers a public protest will end up with hours of footage of the crowd including individuals alone and in groups. If the protest turns hairy, these photographers may also have footage of crimes like vandalism, or worse. The government predictably argued that in such a case all video footage of the entire event – not just that related to the crimes – immediately becomes the government’s property so that it can catalogue the attendees and develop a record of who attends public demonstrations. Clearly this position violates a number of constitutional rights, and had the Ninth Circuit written on it I don’t think you would have liked the outcome.

Josh is taking the defeat in stride. Unlike the do-nothings in Congress, this guy showed some back-bone. “Nothing the government can do,” he said, “will coerce me into submitting to their demands. I intend to appeal this through every measure possible.” If only the Democrats would show the same resolve against the Bush Administration. Please visit www.joshwolf.net and drop the man a note of support or contribute to his legal fund. He deserves it.