Blogger Jailed For Refusing To Hand Over Videotape of Protests

[kpete]

Blogger Jailed For Refusing To Hand Over Videotape
JoshWolf.net | New York Times | Posted Wednesday August 2, 2006

Freelance journalist and blogger Josh Wolf was jailed yesterday for refusing to release a videotape he took at a protest and after refusing to testify before a grand jury.

Wolf, 24, was taken into custody yesterday and "could be imprisoned until next summer, when the grand jury term expires, said his lawyer, Jose Luis Fuentes."

The investigation is related to violence at a protest last July in San Francisco wherein demonstrators and police clashed and an officer's skull was fractured, a smoke bomb was released and arson was suspected. Though Wolf posted some video to his website and sold some to a local TV station he has refused to turn over the raw footage, claiming journalistic privilege. .California has a state journalistic shield law but there is no such federal law, and this case came before the Federal District Court.

Unlike Judith Miller, Wolf is not represented by Floyd Abrams and does not have Pinch Sulzberger standing by at the ready with a martini and a massage. is An excellent point is made by Jane Kirtley, a professor of media ethics and law at the University of Minnesota: "There is a tendency on the part of the prosecutors to go aggressively after people not perceived to have a big gun behind them... They are the most vulnerable links in the chain."

more at:
http://www.huffingtonpost.com/eat-the-press/2006/08/02/blogger-jailed-for-refusi_e_26306.html

[katinmn]

1. I find this truly frightening. I hope he gets help from the

National Lawyers Guild, ACLU and free media activists.

[sgxnk]

2. i agree with this decision

the tape should be reviewed to determine it's probative value

there are significant crimes of violence associated with this protest, and the crime could help free the accused AND convict the guilty

videotape is a great help for lovers of justice and i don't think there is some kind of sacrosanct right to withold evidence

[Kingshakabobo]

4. So now we make journalists agents of the state?

How can we expect journalists/bloggers cover protests if they can be hauled in front of a judge to testify-rat-snitch any time the state feels it's necessary?

Would you be OK with it if they subpoenaed his notes?

[sgxnk]

5. if a journalist covers an incident

and has recovered evidence relevant to a violent crime, then they should be subject to subpoena

yes, that is what i am saying

if you were on trial for murder, and a journalist had recorded a videotape of the murder occurring that could exonerate you (or help convict you or whomever had committed the murder) and he refused to turn it over is that obstruction of justice?

yes

the probative value of the evidence far outweighs any claim that one has a right to withold material evidence

[Kingshakabobo]

9. Sorry.....

The "ticking time-bomb theory" doesn't work in this instance. The state, or a defendant in the imaginary case you came up with, isn't looking to exonerate anyone - they are looking to put someone in jail - and they want to use a journalist to do it. Let's stick to the case at hand.

By "ticking time-bomb" I mean the theory that O'Lielly et. al. likes to conjure up for their justification of torture. I guess it could also be called a straw-man? Maybe? A one in a zillion scenario used to justify every day run of the mill law enforcement versus 1st amendment issues. No dice.

[sgxnk]

16. it does work in this and every instance

that is the nature of criminal evidence. see my last two paragraphs

it is JUST as important to exculpate as it is to inculpate


this has nothing to do with ticking time bomb theory. you are completely misunderstanding that theory, which is completely irrelevant to this case
.
the issue in this case is this:

a journalist/blogger is present at a crime scene and videotapes an alleged crime occurring

he does not, as a matter of law or common sense, have a right not to testify and not to turn over evidence

it is the job for the courts to determine the probative value of that evidence

and UNTIL THE TAPE IS TURNED OVER, neither you nor i know if the evidence is INCULPATORY or EXCULPATORY. you do not know. it very well may exonerate somebody.

here's another example. assume that the guy who filmed the rodney king beating was a blogger. would he have had a right to refuse to turn over that tape?

contrary to popular belief, it is not the job of the cops btw to convict people or to gather evidence against people. it is the job of the cops to GATHER EVIDENCE. i can tell you from personal experience that i have collected evidence in scores of incidents that FREED a person from suspicion in a criminal case. evidence must be collected regardless of whether it is inculpatory or exculpatory. alibis are checked out, not to disprove them, but to find out if they are or aren;'t true

it is a greater miscarriage of justice to convict an innocent man, than for a guilty man to go free (at least that is the theory behind our justice system)

[Kingshakabobo]

18. So, I'm assuming you are OK with bush......

....supeoning journalist's phone records? Once they find out WHO talked to administration/NSA/pentagon officials, I suppose you will be OK with the state forcing the turn-over of notes/recordings etc.??????

[sgxnk]

21. don't assume

let's talk about the instant case, and the facts at hand

generally speaking, with rare exceptions, i am against the subpeona'ing of journalist phone records.

the same could be said of attorneys

btw, attorneys (case law says this - and this applies to lawyer-client privilege) much like journalists do not have many of their privileges when they become witnesses

if you are client X's hired attorney, on retainer

you are at the mall

you see client X murder sally jane

not only are you prohibited from representing client X in this case, but you can (and will) be subpoena'd and will testify against client X.

that's your bad luck for happening to be present at a crime scene

but let's discuss the case facts in this case, and the issues in this case

this is about a journalist being present at a crime scene and videotaping a cirme

that is a different issue than the one you brought up

[sgxnk]

7. i forgot to mention

he may very well not be an agent of the state at all

if the state is assuming the role of prosecutor of defendant X, and the journalist has evidence (a videotape) that EXONERATEs the defendant, then he is more correctly, acting as an agent of the defense attorney, if you want to use the term "agent"

but the "agent" term is wrong, imo

he would be an agent of the state, if he was hired, or ordered to go to a scene AND videotape it and then turn the tape over to the state

if he was there of his OWN volition, and then ordered to turn the evidence over, he is not an agent of the state. he is no more an 'agent' of the state than ANY witness who happened to be at a crime scene and was subsequently subpoeana'd

if you were standing in your office and a guy walked in and murdered your coworker, you would be subpoena'd as a material witness

and if you refused to testify, you would be jailed

if a journalist was standing next to you, videotaping you, he would also be subject to the same process

and rightly so

[bryant69]

3. What's his rationale for saying no?

I don't understand why you wouldn't turn the tapes over?

Bryant
Check it out --> http://politicalcomment.blogspot.com

[Kingshakabobo]

6. Because he is a journalist?

And as a journalist, maybe he doesn't feel he can cover ANT-GOVERNMENT rallies if the GOVERNMENT can call him on the carpet for his notes/videotapes whenever they feel it's convenient for them.

The police get paid to collect evidence on criminals - not journalists.

[bryant69]

8. Yeah but if he has evidence of a crime . . .

I mean the police aren't asking for the video tapes so they can round up every protester. Just those protesters who set off the smoke bomb and punched cops, presumably.

Or do all anti-Government protests involve committing crimes?

Bryant
Check it out --> http://politicalcomment.blogspot.com

[Kingshakabobo]

10. aren't asking for the video tapes so they can round up every protester

.......not yet. Give them time.

[sgxnk]

12. cue:"

black helicopters

fwiw, the police (correctly) have taken up the practice of videotaping protests, especially ones they are present at as a management force (to protect the rights of all sides of a protest to express their views. see: skokie. see: WTO. etc.)

this is an excellent practice

one has a right to protest, in public, to redress grievance

one does not have the right to do so, and expect to free from a recording of one;'s public actions.

this falls under the expectation of privacy statutes

it does NOT follow that the police have a right to collect NON-criminal intelligence in many respects, and there are numerous laws against this. iow, if the protest ends peacefully, the ability of the police to use this evidence of noncriminal actions in further is severely limited

note that nothing in the constitution prevents private actors from keeping reams of noncriminal intelligence. see: credit bureaus, grocery stores, private investigators, etc

[Kingshakabobo]

15. Hey let's start a thread on.....

.......black helicopters(by the way, I don't appreciate the snark and insinuating I'm a loon for standing up for the free press. Let's be adults) and POLICE gathering information at protests............But this thread is about a journalist and his ability to act without being forced to be an agent of the state. Let's stick to the issue.

[sgxnk]

17. ok

and the issue is this

he is not forced to an agent of the state

you keep assuming this

no witness in a criminal trial is acting as an agent of the state, unless they are hired BEFORE the crime occurs to be a witness or participant of sorts. there is actually a lot of case law surrounding "agents" which distinguishes agents from witnesses. the fact that witness HAPPENS to have inculpatory evidence (assuming in this case the evidence is solely inculpatory. and since it is a videotape of a protest, it will necessarily be exculpatory towards SOME and inculpatory towards others. ) or exculpatory doesn't make him an agent for either the state, or the defense. it makes him a WITNESS

see: undercover agents and/or transactional informants

that is an entirely different concept than being present at a crime scene as a (to use a legal term) disinterested witness

if one is present at a crime scene, and witnesses a crime, one is subject to subpoena

that is the issue

again, agents are those HIRED (or otherwise contracted ) A PRIORI to an event, by the state. \

and generally speaking, agents are those that somehow commit a participatory act (like a drug informant actually setting up a drug deal ) vs. being merely a witness

that was not the case here. so, he is not an agent

[Kingshakabobo]

20. OK. I'll look for another term......

....since you keep bringing up compensation. That's not what I mean at all. I mean acting on the state's behalf for no compensation.

[sgxnk]

22. you are not (necessarily)

acting on the state's behalf

i will repeat this for you

you videotape a protest.

unless, every single person you videotape is a participant in the crime (and this is almost never the case in any protest), then you are NOT merely providing inculpatory evidence

you are providing both kinds of evidence. and you are providing evidence that helps the innocent (those who were not assaulting people) as much as convicts the guilty

and you are not acting on the state's behalf any more than ANY witness to a crime

journalists do not have the right to cease being criminal witnesses

and MORE importantly, the videotape makes the issue even more clear

if you videotape the crime, you are not merely refusing to testify. you are witholding material evidence

you have created a piece of evidence, and are now witholding it

[bryant69]

14. Yeah. ok.

Bryant

[sgxnk]

11. correct

but there is no sacrosanct right to be a material witness to a criminal act, then refuse to testify and.or turn over evidence

also, he is not just collecting evidence "on criminals". he is also (in many cases and maybe this one) collecting evidence that can FREE the wrongly accused

it is equally important, in the justice system (actually it is MORE important) to exonerate those who are NOT guilty, as to convict those who are.

if your vp is that anybody who sets up a blog, and is thus a journalist has a right to witness any criminal act and/or collect evidence on it, and then refuse to testify- then i will say that is not supported by case law or common sense

[Kingshakabobo]

13. More straw-men.

Not "anyone who sets up a blog." A person who had a blog and was there acting on behalf of his blog. Isn't there a difference?

Looking to exonerate? I suppose the Bush administration is bugging reporter's phone lines and subpoenaing journalist's phone records because they are looking to exonerate people. OK.

edit to add: journalist's phone records.

[sgxnk]

19. he videotaped a protest

unless your claim is that every single person he videotaped at the protest was engaging in a crime, then clearly his videotape will be exculpatory towards SOME

and INCULPATORY towards others

if 10 people were present, and only 5 committed assault, his tape will be inculpatory towards 5 and exculpatory towards 5

i am assuming, for the sake of argument, that he is a bona fide journalist under the law. let's assume that. yes, he is there for his blog

he still does nto have a right to withold evidence of a crime that he videotaped in progress

second of all, in ALL crimes, the job of the state is that they are looking to gather EVIDENCE

their job is not to convict or exonerate . neither one exclusively. their job is to gather evidence and that will lead either towards greater evidence for OR against a person

i have happily gathered evidence that in MANY MANY cases has exonerated the very target of investigation

i have gotten search warrants that have resulted in the exposure of evidence that completely exonerated the target of the search

the job of the state is to gather evidence on crimes. you can't "get the bad guy" if you are focusing on the wrong guy.

and again, the issue is "does a witness, by the virtue of also being a journalist, have a right to withold evidence"

my answer is(generally): no

and the case law (and common sense) will support my pov