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03/22/2007: "Is Blogging Protected Speech?"

Music: The Minutemen
Mood: concerned

I was reading Boing Boing and came across the story of Josh Wolf, an anarchist blogger who is in federal prison for refusing to turn over the raw footage of a police car being trashed by rioters. He has been there nine months and counting and still refuses to cooperate with the Federal Grand Jury subpoena to turn over his footage, citing his First Amendment rights.

This is quite an interesting case and Wolf's refusal to comply means that this will no doubt eventually head to the Supreme Court. To me it looks like the feds are pushing around a freelance journalist. He is receiving support from many quarters, but the question is that despite all this support, will the Supreme Court rule against him? If they do, what kind of chilling effect would this have on blogging?

This is a very interesting question that I will go into more detail about in the coming posts. Stay tuned.

1 Comment

on Friday, March 23rd, jbdigriz said:

On a personal ethical level, I can relate to Mr. Wolf not wanting to release his footage.

However, from an oversimplified legal standpoint, Wolf filmed an event in a public place, and he does not claim to have promised anyone anonymity or confidentiality. With respect to protection of sources, his case is legally weak. Read the 9th circuit court's opinion here (scanned .pdf):$File/06-16403.PDF

Does this make the legal case morally and ethically correct? No. Are there oddities to the legal case that makes this look like a federal fishing expedition? To me, yes. (Personally, I think the 'bad faith' angle is the best legal attack for Wolf's team, though quite difficult to prove.) Can those oddities be used to dismiss the case on the legal battlefield? Unclear at this time.

The most interesting part of this case to me is not the lack of federal shield laws (though that is a personal issue of mine), or even the weirdness of this being conducted as a federal (as opposed to state) case, but the legal definition of 'journalist'. In a footnote of the above 9th circuit court opinion, they quote the California Shield Law language, and exclude Wolf as a legally difined 'journalist'. Sadly, with the language as it is currently written, that interpretation can be made, even if it is not what was intended. Perhaps it is time to think about rewriting the law?

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