March 10 marked the 200th day that freelance journalist Josh Wolf has been in prison for refusing to comply with a Grand Jury subpoena asking him to turn over an unedited version of July 8, 2005 video footage of a protest in San Francisco. It also requested his testimony regarding the event.
Wolf was initially jailed on August 1, 2006, and was released 30 days later. He was jailed again September 22 and has remained there since.
The idea of journalists being used as an arm of the law may appear far-fetched, but increasingly, there are reports of journalists called to court to reveal their sources, hand over unused notes or video, and even to testify directly.
Currently, 31 states have a journalism shield law in effect. Such laws are meant protect the act of journalism from legal interference. Four states offer some protection for journalists, but 17 offer no protection whatsoever. There is also no federal shield law, and thus, no concrete protection for a journalist called into federal court.
In 2005, New York Times reporter Judith Miller was detained for 85 days for refusing to reveal her confidential source, Lewis "Scooter" Libby, in the case involving the leak of CIA operative Valerie Plame’s identity.
Miller’s status as a journalist was not called to question. As a staff member at the New York Times, the court didn’t have to think twice about her occupation, they only had to balance the importance of the information and how it was obtained.
The perception of a journalist and the changes in the type of journalism that is being streamed to the general public can have an affect on the ability to protect their rights.
Advances in the field of journalism have corresponded with new technologies, and this is forcing the courts to examine laws pertaining to journalism in a new way. With the fading presence of traditional print journalism and the expansion of online journalism, which carries fewer regulations, the courts must not only look at the information about which they are inquiring, but also the legitimacy of who they are seeking it from.
"A number of people would raise the question: is Josh Wolf a journalist?" said Robert Ambrogi, a media and technology lawyer and author of Media Law: A Blog about Freedom of the Press.
In the landmark 1972 case of Branzburg v. Hayes, Supreme Court Justice White wrote in his majority decision that even the “lonely pamphleteer” should be considered on the same level as the professional journalist.
This “lonely pamphleteer” has transformed into the modern day blogger or independent journalist. This blogger may not be completely objective or on the payroll of a major news organization, but he does participate in the act of journalism and news gathering.
"For me there is no question he is a journalist,” said Ambrogi. “Yes, he did have clear political leadingsâ€¦.although we are taught in journalism school to be neutral and objective most great journalists aren’t neutral or objective. The fact that a journalist has political leanings one was or the other does not make them any less of a journalist.”
Journalist groups also stand behind Wolf, regardless of his outspoken political ties, because he was participating in journalism during the July 8, 2005 protest.
"I do back him up. I do not think journalists should be considered arms of the law even though his activities muddy the water" said Christine Tatum, president of Society of Professional Journalists, an organization that pledged $15,000 towards Wolf’s legal fees.
Wolf’s independent style of journalism and blogging also comes into question when examining his ability to be protected as a journalist, regardless of his political ties.
"It is particularly hard these days to figure out where to draw the lines," said Robert Bertsche, a media lawyer.
Bertsche refers to the blurred definition of a journalist in an age where technology allows anyone with a computer to report on what’s around them and get their opinions out there to the general public.
Bertche also brought up the argument that, as the classification of a journalist grows, so does the publics suspicion and this could make it harder for a shield law to be passed out of fear for who it will be protecting.
"At a time when the notion of the press is getting wider with new technologiesâ€¦there is some degree of the press turning against the press; established press turning against the others," said Bertche.
Others look not toward the person doing the reporting, but rather the method of the reporting and dissemination of the news.
"People are caught up in who is a journalist, but the question is: was the person practicing journalism at the time?" said Tatum.
Regardless of the aims of state shield laws, the fact remains that the U.S. has no federal shield law, and despite a reporter’s promise to sources, there is no real protection for that confidentiality.
"The problem is with Josh’s case is that there is no shield law, it doesn’t matter if he is a blogger or working for 60 Minutes," said Lucy Dalgish, Executive Director Reporters Committee for Freedom of the Press.
Media lawyers across the country are working to get shield laws aimed at the protection of journalists enacted in their states. In Massachusetts, which is one of the 17 states that does not have a shield law, there is a bill proposed to the legislature that will likely have a public hearing this fall.
This bill, and others like it, are based on the idea of a balancing test between how the information is collected, the importance of the information and alternative means to obtaining it, all resulting in whether or not it is essential for a journalist to be subpoenaed.
There are many advantages to a balancing test, including the level of confidentiality of the source and also the importance of the information.
"What are the circumstances? What is the need that we are talking about? Is it a reporter who is the only witness to a murder or is it a reporter who has information that can be obtained from another source?" said Bertsche.
The specifics of a shield law are important. If everything is not spelled out in black and white, some feel as though it could create potentially confusing problems. The drafting of a shield is extremely important, and some experts argue what should be spelled out and what should be left to these balancing tests.
"When you create a shield law, it is important you determine who is protected. You’re essentially allowing the government to decide who is a journalist and who isn’t.” said Dan Kennedy, professor of journalism at Northeastern University and author of the Media Nation blog. “Shield laws should be used to define journalism, not journalists, and if you draft it that way there isn’t really a problem.”
There is also concern that if a broad shield law is passed, it could potentially provide an excuse for the common person to keep from doing their civic duty. The reporter’s privilege, if vague, go beyond the scope of those it is designed to protect.
Yet there remains a strong counter argument.
"Reporters are in the business of finding out facts and if we are going to make it easy for a lawyer or prosecutor to go to a journalist to obtain information. Then we are diverting from the reporters job of bringing information to the public," said Bertsche.
This diverting could be counter productive to the first amendment, because it could potentially cut off the flow of information to the public.
The desire for the instillation of a federal shield law that would protect journalists of all styles is one of Wolf’s main objectives.
"Josh is doing this so other journalists don’t have to, said Liz Wolf-Spada, Wolf’s mother. “One of his goals for this is to create a federal shield lawâ€¦one not just for traditional journalists but also journalists on the web.”
Many do not believe that this will happen anytime soon. When asked if she believed that a federal shield law would be enacted in the near future Dalglish said: "It is not going to happen soon enough to help Josh."
The media attention surrounding this case has also been minimal in comparison to similar cases, and this could hinder any chance of legislation resulting from Wolf’s case.
"I don’t think there is that support at the federal level, and I don’t think the level of outrage regarding Josh Wolf is as high as I would expect it to be," said Bertsche.
Despite what’s going to happen in the future or the new definition of journalism, the reality remains: Josh Wolf is the longest imprisoned journalist in history for failing to comply with a subpoena.
"They went to mediation on the eighth and emerged with no result. They may try mediation again," says Wolf-Spada concerning the recent court proceedings involving her son’s case.
If the case isn’t brought again before mediation, Wolf can face up to 18 months in jail total. That is the longest amount of time the Grand Jury is allowed to hold someone in jail without being charged with a crime.
"A shield law is generally used for a reporter to protect confidential sources, but with Josh Wolf its not about confidentiality he never promised anyone confidentiality, there is no source to protectâ€¦it isn’t clear whether a shield law would protect him," said Ambrogi. "The government hasn’t said why they want the informationâ€¦it’s a scary case to me."