In an unpublished ruling issued Thursday, a panel of the Ninth Circuit Court of Appeal ruled against freelance video journalist Josh Wolf and stated that he must comply with a grand jury subpoena for his unpublished footage. Previous coverage here.
Winning in the Ninth Circuit is very much the luck of the draw these days. Although Wolf drew a favorable three judge panel for his bail motion, that was the August motions panel. This merits ruling was made by the September motions panel which features three much more conservative judges. They deemed the case so easy that no oral argument was necessary. They also determined not to publish their opinion, which generally means that they do not deem it to be significant enough to disseminate outside the parties to the case.
The court ruled that a newsperson has no right to refuse to respond to "relevant and material questions asked during a good faith grand jury investigation." Although a balancing of the journalists right with the government's need to know might occur if the investigation is in bad faith of the requested evidence is only remotely related to the subject of the investigation, the panel found that neither of those two preconditions are true here.
One of Wolf's major claims is that this case is in federal court because prosecutors are doing an end run around California's shield law. The 9th Circuit disposed of this contention in a footnote saying that Wolf had not shown that he was connected with a periodical, press association or wire service, a prerequisite for California protection. Wolf's status as a journalist has always been a major issue in the case as he is closely allied with the anarchists he was covering.
Wolf must now decide whether to testify or go back to jail. He could appeal to the U.S. Supreme Court, but relief there is not going to happen.