Article summary and key findings

Business Dispute: First Amendment & the Media

FREEDOM OF SPEECH: THE JOSH WOLF FIRST AMENDMENT CASE

In recent years, the First Amendment's "guaranteed" rights of freedom of speech and the press have emerged as a subject of pressing concern for journalists, citizens, and government officials alike. The inevitable convergence of the media, consisting of the combination of the Internet with other forms of media, has only intensified the problem. In a case closely watched by First Amendment advocates, a federal court panel rejected an appeal by twenty-three-year-old freelance journalist and blogger, Josh Wolf, who has refused to appear before a grand jury or turn over video he shot of a violent protest last summer. The decision, September 8, 2006, by a three-member panel of the Ninth Circuit Court of Appeals, reaffirmed a contempt charge against the journalist, who was sent to prison on August 1, 2006, by a lower court for refusing to cooperate with an investigation into an anti-capitalism protest in the United States in July of 2005. This paper will identify the First Amendment dispute, examine the relevant court proceeding and court structure, and will compare and contrast potential outcomes under the criminal and civil laws of the United States.

On July 8, 2005, Wolf videotaped a protest march in San Francisco against the Group of Eight Summit economic leaders in Scotland. At previous protests, Wolf had attended as an advocate, but this time he went as a journalist, gathering footage for his videoblog, "The Revolution will be Televised (Blitstein, 2006). Wolf released a video of the protest that portrayed dozens of protestors dressed in black and wearing masks, marching carrying signs and placards with anticapitalist, anti-government slogans or bearing the logo of the group Anarchist Action. The video shows marchers setting off fireworks and dragging metal newsstand boxes into the street to block traffic after dark. Police officers were called to the scene to squash the small riot, and after a patrol car was blocked by a very large foam sign under the chassis, the officers exited the vehicle and Wolf chased after a man he suspected of placing the sign under the car. The video portrays the officer struggling to cuff the suspect amid shouts of "Get off him, you're choking him!" And "You're going to jail for police brutality (Blitstein, 2006)!" By the time the office returned to the vehicle, his partner was bleeding profusely from the head, with a fractured skull. The incident of what occurred went under investigation by the Department of Justice, who believes that Wolf's unedited video portion contains the truth about what really happened between the officers, the suspect, and the burning police car. Wolf refused to give up the unedited, unbroadcasted portion of tape, stating that as a journalist he shouldn't be forced to surrender unused footage in support of the Department of Justice's investigation.

Wolf refused to give up the unedited portion of his videotape, and was indicted by a federal grand jury on charges of refusing to cooperate with a federal investigation. Indictment by the grand jury is the first stage to a trial, and the facts revealed during the grand jury investigation were not shown to Wolf, which is also how the court system operates. Since Wolf refused to give up the unedited portion of his videotape, he was served with a subpoena to force him to give up the tape by the District Attorney for the Ninth Circuit Court. He refused to comply with the subpoena, and was held in contempt of court. This process fits into the court structure in that a subpoena is used during the preliminary stages of a trial in order to allow both sides the capability to uncover all facts, allow all witnesses to be called, and to collect any other preliminary information needed before proceeding with the trial. "Contempt of Court" is a device used by the court system to attempt to coerce compliance with subpoena's issued under the law by means of fines or imprisonment. Wolf was imprisoned for being in contempt of court, and his lawyers argued in federal court to quash the subpoena, stating that Wolf is protected by California's shield law, which allows journalists to maintain confidential unpublished information obtained during newsgathering. Granting the government widespread power to request unused recordings, Wolf's layers argued, would turn journalists into an arm of the Justice Department, creating a chilling effect among citizens, thereby violating their First Amendment rights of free speech and assembly (Blitstein, 2006). Wolf's lawyers also contended that the subpoena was an unreasonable use of federal power to aid state and local investigations.