Videographer, Blogger Freed from Prison

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Listen to this 'Talk of the Nation' topic

San Francisco videographer Josh Wolf, released just a few days ago from prison, explains why he spent eight months in jail for refusing to comply with a grand jury subpoena to turn over his videotapes of a 2005 San Francisco street protest against the G-8 summit.

SIMON SCOTT, host:

This is TALK OF THE NATION from NPR News. I'm Scott Simon in Washington, D.C.

Right now, the imprisonment and the release of Josh Wolf. He's the videographer and blogger who spend the last seven and a half months behind bars for refusing to comply with a grand jury subpoena. Federal prosecutors wanted him to turn over video footage that he took two years ago, the San Francisco demonstration against the G-8 summit that turned violent. They also wanted him to testify before a grand jury. Mr. Wolf refused, citing First Amendment protections. And last week, he turned over the tape and went free.

If you have questions about Josh Wolf's time in prison, why he refused to hand over the videotape or testify, please give us a call. The number is 800-989-8255. That's 800-989-TALK. E-mail is talk@npr.org.

Josh Wolf joins us now from the studios of member station KQED in San Francisco.

Mr. Wolf, thanks very much for being with us.

Mr. JOSH WOLF (Blogger and Videographer): Thanks for having me. Good afternoon.

SIMON: And I want to talk about that video footage that's the center of the story first. But you reached a deal with federal prosecutors to get out of prison. You think it's a good one that doesn't violate your principles. Sketch it out for us if you could.

Mr. WOLF: Basically, it's the very same resolution that we had come forward with to the U.S. attorney in November. And at that point, the U.S. attorney said that he'd accept nothing less than full compliance with the order of the subpoena.

Basically, I feel that I shouldn't have had to turn over, publish, whatever material I choose not to publish. I think that that should be a protection afforded to me under the constitution as a journalist.

However, as there was no sensitive or confidential material on the tape, once I was able to get the U.S. attorney to divorce the demand for testimony in front of the grand jury from the tape itself, there was no real reason to protect the tape. And at this point, the public had an interest to know what was on the tape, as there were all these accusations that I had captured this, that and the other thing. And I felt that the best way to solve was to simply allow the public to make their own gauge of what's on the tape.

SIMON: Mr. Wolf, what makes you a journalist and entitled to cite that kind of protection?

Mr. WOLF: What makes me a journalist?

SIMON: Yeah. I don't mean the feeling in your heart. I mean, do you work for a news organization? Did you make this available to a news organization? Any of that.

Mr. WOLF: The footage - the edited material was sold to KRON, which is a local news affiliate in the area.

SIMON: Channel Four, yeah.

Mr. WOLF: As well as - Channel Four, exactly. And it was also licensed by most of the local affiliates in the Bay Area.

SIMON: This is footage that was seen already?

Mr. WOLF: Right.

SIMON: OK. So - because there were people who questioned - and I should say a lot of journalism organizations rallied to your defense and said that they disagreed with you imprisonment, but there were some people who questioned as to whether or not you were entitled to the same protection as somebody who had been shooting video for a news organization.

Mr. WOLF: Right, but at the same time, we don't have a corporatacracy for journalism. If only corporate news is identified as being under the auspices of the press and the free press, then who's going to report when the news gets out of line? I mean, I suppose we have NPR here, but, you know, when the First Amendment was written, it was written with the lowly pamphleteer in mind. And in many ways, bloggers that are engaging in journalistic activities are today's lowly pamphleteers.

SIMON: You mean, people like Thomas Payne?

Mr. WOLF: Like Thomas Payne, like E Publius, who wrote the Federalist Papers, which I think was Alexander Hamilton and another person who I can't remember off hand.

SIMON: Yeah, I think so. We want to invite calls. If you have calls for Mr. Wolf, the video blogger released from jail last week, our number at TALK OF THE NATION in Washington, D.C. is 800-989-8255, 800-989-TALK.

Mr. Wolf, what's on that tape?

Mr. WOLF: What's on the published tape or on the unpublished tape?

SIMON: Well, whatever you want to tell us.

Mr. WOLF: Well, on the published tape is pretty much everything newsworthy that happened. There were some disputes between the protestors and the public. There were some disputes between the protestors and the police. All of that stuff, everything that has any real value to it was on the public tape. Realize that when I edited the tape down, the FBI hadn't knocked on my door yet, and I wanted the world to see everything that I felt was of value.

What's on the unpublished tape is a bunch of outtakes which show that my camera's not always stable, sometimes I don't realize I'm filming, and sometimes things are just boring. And really, if I were to cut out the published stuff, and be only left with the unpublished material and present that to someone, it would be one of the most unvaluable films that they had to be exposed to.

SIMON: Now let's remind people that a police car was set on fire during these demonstrations and a man's skull was fractured, a San Francisco police officer's skull was fractured.

Mr. WOLF: Well, a San Francisco police officer's skull was fractured. I have a copy of the damage report for the police vehicle, and burned is one of the choices for damages. The only thing they marked was a busted right-rear taillight. So there is really is no evidence that a San Francisco police vehicle was burned in any way, shape or form.

SIMON: But then, let's talk about the police officer's skull that was fractured. If you were a prosecuting attorney and a citizen's skull had been fractured, can you understand why you would scour the waterfront for every available evidence that there might be that might be able to suggest who had perpetuated what is after all a violent crime?

Mr. WOLF: It may have been a violent crime. I don't know the circumstances. It's all alleged at this point. It is certainly an unfortunate fact that this officer was injured. The thing is that's a state matter. It shouldn't have been in the federal government and it certainly isn't terrorism. The subpoena was issued by the joint terrorism task force. So this was, in essence, a terrorist investigation. And I was never even subpoenaed or questioned by anyone representing the local prosecution, which is really who has jurisdiction over that matter.

SIMON: There have been - we should note, you have spent more time behind bars than any other person in the media. Judith Miller of The New York Times is in jail for 12 weeks, I believe most recently. I'm not sure honor is the word, but in any event you win the endurance contest. What was it like for you in there?

Mr. WOLF: Boring. It was a great opportunity to get some reading done. I read about 50 books while I was there. I had an opportunity to see first-hand how people end up ensnared in the justice system, and learned a lot about how due process and the right to a fair trial really doesn't exist anymore, especially in a federal context.

But then, at the same time, it was really isolating and you can never really get any privacy. There's always someone around your cell, the people in the day room and it's usually noisy. And so I started to develop a bit of an (Unintelligible) towards the end of it. But all in all, had they not finally agree to a resolution, I could have been able to see it out through the full 18 months.

SIMON: Let's take a call, if we could. Robert in Phoenix Arizona, you're in TALK OF THE NATION. Thank you.

ROBERT (Caller): Hi. I just had sort of a general question that he brought up earlier while he was making a comparison between corporate news entities being under the protection of the I'm a free speech versus, you know, just some guy with a camera, a free pen. And I'm just wondering what - and I should say that I come from being a content provider, I own a commercial and film and video production company.

So this is an issue that we grapple with routinely when it comes to information that we would think should be publicly available or publicly give out to shoot and capture. But I just wondered to what extent do you think that protection should go to someone who is in an established, trusted news organization versus some guy who may or may not be capturing something staged.

SIMON: I mean, if I might interject between the three of us and, of course, people listening, I can see a loophole, could you conceivably have people perpetrating the crime bring someone along to videotape it?

(Soundbite of laughter)

SIMON: And then cling to what they say are their First Amendment protections because I don't know they intend to provide it to a blog that shows crime scenes or something like that later on?

Mr. WOLF: If you were to try to utilize that…

ROBERT: Go ahead.

Mr. WOLF: The person would be charged with conspiracy. And the contempt situation would be less of a concern for that videographer than the conspiracy charge, which carries a mandatory minimum of 10 years.

SIMON: Okay. So, Mr. Wolf, if you could address the first question, I think, Robert posed.

Mr. WOLF: The issue of what entity should be protected and what shouldn't, how you balance that. Well, in situations where there is already is an established protection, say a doctor, a priest, a lawyer, the judge will utilize a balancing test between the importance of this privilege with the importance of the evidence and finely tailor what they actually obtained to submit to government investigations and what's admitted into evidence. I'd say that a base point to consider would be to establish a similar balancing test for the journalist's privilege, which we currently don't have in the federal government.

SIMON: There are states, I forget the exact number of states, that have what are called shield laws. But the federal government doesn't have that law. We might point out that's exactly what permitted the special prosecutor, Patrick Fitzgerald, to issue subpoenas, though I forget how many journalists, with the exception of Judith Miller. For the most part they were honored. Journalists took the stand.

Mr. WOLF: Right, they did. And in fact 49 states plus the District of Columbia has some sort of shield protection for journalists.

SIMON: Let's take another caller if we could. John, I believe, in Berkeley, California.

JOHN (Caller): Yes, hi. I just wanted to ask, I understand, you know, his refusal to turn over the tape on First Amendment grounds, but I wanted to know specifically why he chose to cooperate once an agreement was made and not really kind of wait it out. I mean aside from the boredom and the hassle of being in jail, standing on principle. You know, couldn't he observed - wouldn't the cause have been better served by waiting it out and just simply refusing to answer…

SIMON: Mr. Wolf?

Mr. WOLF: Yeah, it's a delicate matter, John. Basically, my feeling when I went into this, and I still hold the same feeling, is that the fight for the tape was worthy having. But that was the sort of battle that once you lose that battle, there's nothing being revealed on the tape. The tape has no content to it.

So that was a battle that was worth walking away from once I'd lost it, once I had exhausted my appeals and wasn't legally protected. The issue of testifying in front of the grand jury was where the real damaging effects could have been, where they asked you to name every name of every individual that's on the tape that you know. And then those people are, in turn, called in. And it essentially looks like a 1950s McCarthyist witch-hunt.

So as far as standing for the principle, the point that I was able to secure the public release of the tape, there was no point in staying in jail other than for the sake of being a martyr.

SIMON: You're listening to TALK OF THE NATION from NPR News. And I want to go to another caller if we can now. This is Steven from Little Rock, Arkansas.

Mr. WOLF: All right.

SIMON: Steven.

STEVEN (Caller): Hello, yes.

SIMON: Hi there, Steven (unintelligible).

STEVEN: Yes. I would just like to ask how you can confuse journalism with what should be publicly available evidence. For instance, if you were to film an interview with a pyromaniac who burned down a building for political reasons, I could see protecting the identity of that pyromaniac. But if you were to actually film him in the act of burning down the building and the prosecuting attorney wanted that film for evidence on his trial, I don't see how you could in good conscience withhold that as evidence.

Mr. WOLF: Well, if you didn't film the pyrotechnic burning down the building and you were just filming something else at that period of time and you offered to allow the judge to see that you didn't capture this incident, which is exactly what we did, then it seems to me that it's reasonable to ask the judge to make that determination whether or not there is an evidentiary value or not.

SIMON: Mr. Wolf, you have been in the law school, have you?

Mr. WOLF: No, I have not.

SIMON: You've just been doing a lot of reading in the prison law library? I mean, you're very familiar with the nomenclature.

Mr. WOLF: I did a bit of reading in the lead up to my case. I obviously read through all of the documents that were filed in my case very carefully. I've read the cases related to my case.

You know, I want to know what I'm talking about before I go on national radio and talk about my situation.

SIMON: And can you understand, Mr. Wolf, why - certainly we get e-mails from a lot of people, members of the general public who get a little impatient with reporters invoking what they considered to be rights that are above and beyond that are available to any other citizen. Most citizens, if they have something that could possibly be used as evidence in a criminal trial or evidence to exonerate someone of criminal charges, don't have the option of invoking the First Amendment. A crime is a crime is a crime and they are compelled to offer testimony or suffer the consequences if they don't offer that testimony.

Can you understand why members of the general public sometimes get impatient when they think reporters are invoking extra special rights?

Mr. WOLF: Well, I'm not entirely sure. In fact, I'm disinclined to think that the government should be able to coerce people who don't want to testify, who are not involved in the actual crimes to testify. We have the Fifth Amendment to protect those involved. But we have no protections to protect those who just don't want to be involved. I'm not sure that we shouldn't have some means to facilitate that other than spending 18 months in jail.

It's not a matter of journalist being of a higher class or excused from rules. It's a matter of the journalist's work itself being protected. For instance, it's not like while I was coming home from a shoot I happened to witness a robbery that wasn't part of my coverage and said I wouldn't testify. This is testimony related to the actual journalistic activities.

So it's not a matter of putting myself in a higher class by any means, it's a matter of protecting the work products so that the work can continue to support the free flow of information.

SIMON: David in Tempe, Arizona, has a question we might be able to handle quickly. David.

DAVID (Caller): Yeah. To follow up on the last point, I don't understand what principle you were protecting in terms of ensuring access to your sources. It wasn't like you had an obligation to these people to get information from them in the future.

Mr. WOLF: What obligation did I have? Well, again, you have to realize there's the testimony and the video material. I had been covering civil dissent in the Bay Area for the past three years and had - I've developed a rapport with both anarchists and more mainline protesters, protest organizers. These people are our contacts for me, and if I were to be turning myself into an investigator for the government, then they would no longer feel comfortable talking to me. And the people would have no ability to learn that information.

SIMON: Mr. Wolf, can I ask quickly what your plans you have?

Mr. WOLF: Take care of all the interviews that are going on and I've got a couple or projects in the works. One is called Free the Media, and one is called prisonblogs.net. And Free the Media is focused on trying to free the media from both political, legal, and corporate pressures which are preventing the public from really getting the full knowledge and closing down the marketplace of ideas.

SIMON: And is this video you shot to sort of cross the T on it, is that available somewhere that people can see it now?

Mr. WOLF: Yeah, it's two entries down at www.joshwolf.net. And that's w-o-l-f, just like the animal.

SIMON: Have any job offers?

Mr. WOLF: None have come in yet, but I'm hopeful that something will. My old job's still available but we'll see what comes down the pike.

SIMON: Okay. Mr. Wolf, thanks very much for being with us.

Mr. WOLF: All right, thank you.

SIMON: Josh Wolf is a video blogger. He's been out of prison less than a week after almost eight months in jail, joining us from the studios of member station, KQED in San Francisco.

And remember you can download our full show as a podcast. Just stop by NPR.org/blogofthenation for more information on how to do that.

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