Blogger Jailed - Freedom Of The Press Tradition Thrown Aside

Blogger Jailed After Defying Court Orders

In an era where the federal government is pushing against the very concept of a free press and the constitutional protections of the First Amendment, the status of bloggers is in a vague ethereal state. Is a blogger a journalist of any sort?

That is an important question because answering it will allow shield laws and case precedents regarding libel (i.e. Sullivan v. Times) to protect what is stated in the blog. In my own case I feel fairly safe on most of my posts because of the political nature of the blog, and the First Amendment protections are even greater for political and religious speech or expression. However, since most bloggers offer some sort of opinion in their analysis, the need to clarify the status of bloggers under the terms of the First Amendment is going to become an issue like no other.

But in order to clarify the status of a blogger, we must look to the intent and history of our constitutional framers. When our framers wrote the First Amendment the works of Benjamin Franklin and Thomas Paine were considered works of a free press. There were no large newspapers or corporate media outlets. The average member of the press was a printer by trade that also ran a pamphlet or newsletter for the local community. In effect, they were bloggers without the benefit of the electronic worldwide web and the blogosphere.

So why is the federal government so set on blocking bloggers from being classified as journalists, and thereby protected under the First Amendment. From my perspective it is because of the democracy that is the blog. The marketplace of ideas that our founders and framers spoke to in their day is no longer controlled by the large corporations.

Now there are blogs that would not qualify as journalism. My nephew has a blog on MySpace that is nothing more than a jumble of loose associations, a bit of an attempt to be a rap artist (he needs a lot of work and prayer in this regard), and ad hominem attacks on those that he finds offensive. But there are many blogs that report the news, analyze news released through MSM, and offer insights that are not ordinarily offered in the local newspaper, television reports or other media. Bloggers also offer a democratic feature that most news outlets offer in a censored manner: feedback.

But the case cited in the article below has some broader questions and issues, including some ethical questions as to whether or not a journalist witnessing a criminal action has a duty to the story or the society... or both to some degree.

SAN FRANCISCO, Aug. 1 — A freelance journalist and blogger was jailed on Tuesday after refusing to turn over video he took at an anticapitalist protest here last summer and after refusing to testify before a grand jury looking into accusations that crimes were committed at the protest.

The freelancer, Josh Wolf, 24, was taken into custody just before noon after a hearing in front of Judge William Alsup of Federal District Court. Found in contempt, Mr. Wolf was later moved to a federal prison in Dublin, Calif., and could be imprisoned until next summer, when the grand jury term expires, said his lawyer, Jose Luis Fuentes.

That is a hell of a price to pay... Federal prison is not easy time regardless of why you might be there.

Earlier this year, federal prosecutors subpoenaed Mr. Wolf to testify before a grand jury and turn over video from the demonstration, held in the Mission District on July 8, 2005. The protest, tied to a Group of 8 meeting of world economic leaders in Scotland, ended in a clash between demonstrators and the San Francisco police, with one officer sustaining a fractured skull.

A smoke bomb or a firework was also put under a police car, and investigators are looking into whether arson was attempted on a government-financed vehicle.

Mr. Wolf, who posted some of the edited video on his Web site, www.joshwolf.net, and sold some of it to local television stations, met with investigators, who wanted to see the raw video. But Mr. Wolf refused to hand over the tapes, arguing that he had the right as a journalist to shield his sources.

If the video has already aired on a web site and on television in edited format, what source is being protected? Is a video recording of an event a source? Perhaps Mr. Wolf has a wrong understanding of the shield laws and the exact nature of a free press? Or are there larger issues and questions that Mr. Wolf is raising?

On Tuesday, Judge Alsup disagreed, ruling that the grand jury “has a legitimate need” to see what Mr. Wolf filmed.

The fact that the government has a legitimate need for something doesn't mean that it has a compelling interest or need. Are there other ways to conduct the investigation? Certainly law enforcement officers can interview others that were identified as being in attendance, including those that might have been arrested in the process. Perhaps this is the nexus of the larger issues Mr. Wolf is raising... The government needs to have a compelling interest that cannot be met by other means before it can circumvent or cast aside the provisions of the First and Fourth Amendments.

Mr. Wolf, a recent college graduate, is the latest journalist to face prison time for refusing to cooperate with federal investigators. Last year, the New York Times reporter Judith Miller served nearly three months in jail after refusing to divulge her sources in the investigation of the leak of a covert C.I.A. agent’s name.

Certainly the case against Judith Miller is a lot clearer regarding the issues of protecting a source. But I think Wolf and his attorneys are missing an important argument by not focusing on the Fourth Amendment issues and the fact that the government has no authority to co-opt or forcibly compel a citizen into becoming an unwilling agent of law enforcement or the government.

Jane Kirtley, a professor of media ethics and law at the University of Minnesota, said that although the jailing of journalists had become more common, Mr. Wolf’s case was the first she had heard of in which a blogger had been pursued and eventually jailed by federal authorities.

“There is a tendency on the part of the prosecutors to go aggressively after people not perceived to have a big gun behind them,” Ms. Kirtley said. “They are the most vulnerable links in the chain.”

This is a corrollary to the "deep pockets" doctrine of civil law, which states that a law suit against someone usually requires that the plaintiff have deep pockets to fund the law suit and the respondent/defendant have deep pockets so that damages can be sought. In this case, any journalist lacking the deep pocket resources to provide legal services for an indefinite period of time are vulnerable. Of course, this is exactly why the issues of the First Amendment are an important part of this case and others. If we do not extend the First Amendment protections to even the least journalist among us, then only the larger, more corporate sources of news and analysis will be available to us. Given the propensity of manipulation among the media either by the media itself or governments in general, we can ill afford to limit journalistic efforts to those that have the backing of big corporate coffers and legal resources.

While California has a so-called shield law meant to protect journalists and their sources, no such law exists at the federal level. Even if there was such a law, Ms. Kirtley said, it is unclear whether a blogger and freelancer would fall under it.

I part company with Professor Kirtley in that the First Amendment protections are not specifically given to a media business enterprise, but allows for a free press in terms of the understanding of the press at the time that the Constitution was written. The rights expressed in the First Amendment--and each of the Amendments identified as the Bill of Rights--are specifically reserved to the people first and foremost and extended to business enterprises as an extension of the rights of the individuals associated with the business, not the other way around. We allow corporations to exercise certain rights under the doctrine of the "fictitious person" and an extension of the individual and collective rights of those participating in the business activity.

Mr. Wolf has attracted supporters, including the American Civil Liberties Union and the San Francisco Board of Supervisors, which introduced a resolution objecting to the federal government’s role in the investigation. The Society of Professional Journalists contributed to Mr. Wolf’s legal defense fund.

Kudos to the ACLU and the SF Board of Supervisors for supporting Wolf.