9th Circuit: Josh Wolf Must Comply with Subpoena (HuffPo)

[DeSwiss]

HuffPo Scoop: Ninth Circuit Rules That Freelance Journalist Josh Wolf Must Comply With Federal Subpoena

Stephen Kaus - Huffington Post
09.10.2006

In an unpublished ruling issued Thursday, a panel of the Ninth Circuit Court of Appeal ruled against freelance video journalist Josh Wolf and stated that he must comply with a grand jury subpoena for his unpublished footage.

<snip>

The court ruled that a newsperson has no right to refuse to respond to "relevant and material questions asked during a good faith grand jury investigation." Although a balancing of the journalists right with the government's need to know might occur if the investigation is in bad faith of the requested evidence is only remotely related to the subject of the investigation, the panel found that neither of those two preconditions are true here.

One of Wolf's major claims is that this case is in federal court because prosecutors are doing an end run around California's shield law. The 9th Circuit disposed of this contention in a footnote saying that Wolf had not shown that he was connected with a periodical, press association or wire service, a prerequisite for California protection. Wolf's status as a journalist has always been a major issue in the case as he is closely allied with the anarchists he was covering.

More: http://www.huffingtonpost.com/stephen-kaus/huffpo-scoop-ninth-circ_b_29119.html

*** - It appears the Ninth Circuit Court wants to have it both ways:

"The court ruled that a newsperson has no right to refuse to respond to "relevant and material questions asked during a good faith grand jury investigation."

Then...

"One of Wolf's major claims is that this case is in federal court because prosecutors are doing an end run around California's shield law. The 9th Circuit disposed of this contention in a footnote saying that Wolf had not shown that he was connected with a periodical, press association or wire service, a prerequisite for California protection."

So he's a "newsperson" who is subject to answering a Grand Jury's questions? And then he's "not a newsperson" when considering whether he's covered under the California shield law?

:shrug:

[Kagemusha]

1. Getting an end run around the shield law isn't what 'bad faith' means.

Not here anyway.

Here, 'bad faith' means that there is no legitimate law enforcement purpose in demanding the footage. Regardless of routine cynical dismissal of the grand jury process, a grand jury is given latitude that federal prosecutors alone are not because the information is kept secret (except that witnesses can speak to the public about their own testimony) and is used in a prosecution only if a jury of citizens declares it is warranted, as a protection provided to the public to balance a powerful tool for investigating serious crimes. It is not a process to be used frivolously.

The Ninth Circuit has found that this power is not being used frivolously. Therefore, because the grand jury has demanded the evidence in confidence, the citizen, who apparently doesn't qualify for state shield law protection, has no federal protection regardless of if he should be considered a newsman for 1st amendment constitutional purposes.

However, if he wasn't a newsperson subject to answering a grand jury's questions, he'd just be a citizen subject to answering a grand jury's questions. In this case, that gets him at exactly the same place.

[DeSwiss]

2. I'm not questioning the ruling as it regards the issue of "bad faith"....

I'm questioning the ruling stating that a "newsperson cannot refuse to respond to relevent and material questions....."

While also saying that he's not a newsperson because "he had not shown that he was connected with a periodical, press association or wire service."

So which is it? Is he a newsperson or not?

The Feds involvement in this is spurious at best in my view. But I guess Josh is going back to jail....

[Kagemusha]

3. Uh, he's not a newsperson under state law then, and...

even if he was a newsperson under federal legal precedent he'd still have to testify. I cant' tell from this if the court made some kind of formal determination or not.

The Supreme Court ruled there's no blanket exception for newspersons. That's the law.

Edit: I think the point is, if state law had deemed him a newsman, regardless of the lower federal protections under precedent - remember, unlike the California legislature, Congress has not and has never passed a shield law, so it's been fought out solely in the courts - then the higher state protections may have blocked the prosecutors' actions here. May. I wouldn't know about the details of the ruling beyond the snippets above but, I have paid much attention to previous cases involving journalists under these federal precedents.

[DeSwiss]

4. I know, I know, I know....

I'm splitting hairs here. My wife gets on me about it all the time. Sorry.

But personally I think that back when we had a "real press" they should have had some legal protection to shield their sources. The absolute lack of it has resulted in the Bush Administration threatening to raid newspaper offices...

But the order as presented on HuffPo (a jpg file), seemed to show the Court considering the issue of his being a newsperson only because he raised it. Once they decided that he was not contracted nor working for a newspaper, media outlet or wireservice, that should have ended the issue.

But they turn around and cite rulings that the Supreme Court has held denying newspersons protection from testifying before Federal Grand Juries to bolster their own position. Yet they'd already he wasn't a newsperson. If he's a private citizen, then anyone out there with a camcorder that day should be subject to subpoena before the Grand Jury. And Wolf both sold and posted video footage of the incident on his website. From this action, the Grand Jury infers that he must have pictures relevant to a violation of the law. No proof, just inference.

Wolf says he doesn't have anything showing anyone damaging the police vehicle, which is what this is all about. And the Feds role in this is that some of that police equipment was purchased with federal money. That's their inroad to the case. Hell, what doesn't have some federal money in it these days?? Using that logic, that could make J-walking a federal offense if the street was paved using federal money. And a lot of them are now that I think of it.

And I would think that if there was footage of a violation of the law, that is what the news media would have wanted to buy. But they didn't. So however this pans out for Josh, I think they'll get bupkus in the end. And end up looking as stupid as they are. And they will have spent hundreds of thousands of dollars for what?

[Kagemusha]

5. To make a point that probative evidence can be subpoenaed.

If it's all for nothing, that's a real damn shame, but it should've been resolved without defying a lawful subpoena on a principle that is not absolute according to the Supreme Court, something that was not a new revelation to any competent lawyer who's followed the Judith Miller saga and has read the underlying legal arguments.

[DeSwiss]

6. You make a good point...

...on the other hand, how many other damaged police cars do you think the Feds will prosecute this year? They've already given him such publicity. I'ts bound to be a great boost to his career. That's worth more than gold. And the Feds made it all possible...

[Kagemusha]

7. Fine, if it's really worth it to him...

I wouldn't have recommended challenging what is, for the time being, settled judicial precedent that even a NY Times journalist had to bend to after a Supreme Court challenge, within the last few years.