San Francisco federal court has become ground zero in the Bush Administration's assault on the press. Although the putative War on Terror has been the excuse for many of the civil liberty curtailments that the federal government has accomplished, no such excuse is possible in two cases about to be decided in the City by the Bay.
Most prominently, in August S.F. Chronicle reporters Mark Fainaru-Wada and Lance Williams face a hearing over whether they should be forced to reveal the source of grand jury testimony they published. Never mind that their reporting in the Chronicle and in Game of Shadows is responsible for the improvement in drug policies in baseball and other sports, a law has been broken and it must be mindlessly enforced. Asked whether there should be a shield law to protect reporters, Gonzales responded
"We know the importance and appreciate and respect the importance of the press to do its job ... but we also can't have a situation where someone who does a terrible crime can't be prosecuted because of information that's in the hands of the reporter."
In the case of Fainaru-Wada and Williams, the "terrible crime" is publishing transcripts from a closed investigation that all of those involved in the case already have. Moreover, the only known complaint about the articles is from Barry Bonds, who is about to be indicted for perjury, apparently in the very testimony Fainaru-Wada and Williams published.
But more about the "Flaxseed Oil 2" after the August 4th hearing.
Today's story is about Josh Wolf, a 24-year-old journalist who shot video of a June 2005 fracas between anarchists and the San Francisco Police. Some of Wolf's footage was broadcast and is available to the government, but they want outtakes as part of an investigation into vandalism of a police car. Wolf says his tape does not even show the vandalism incident, but all indications are that he will be sentenced for contempt today (July 20th) because he will not turn it over.
But wait a minute. Why is this in federal court? The simple answer is that California law would protect Wolf while federal law does not. In Miller v. Superior Court, 21 Cal. 4th 883 (1999), the California Supreme Court ruled that a prosecutor could not overcome the shield law that has been in the California Constitution since it was passed by the voters in 1980.
The strong California shield law does not apply in federal court. Because the S.F. Police receive federal money, the U.S. Attorney has claimed jurisdiction. Also, the FBI's Joint Terrorism Task Force is on the scene, investigating the anarchists.
In federal court, the newsperson's privilege is in deep distress. Reporters have long argued, based on a 1972 case named Branzburg v. Hayes that produced no clear majority opinion, that there is at least a qualified common law reporters' privilege requiring a court to weigh the incursion into press freedom against the importance of what could be accomplished by requiring testimony before the court can compel evidence from a reporter.
The Judy Miller case did harm to this balancing theory, although in truth, only one of the three Court of Appeal judges ruled out the existence of such a common law privilege. A second judge wanted to duck the issue because the prosecutor had convinced her that any such privilege had been overcome, while the third would have found that Miller would have been entitled to protection, "were the leak at issue either less harmful or more newsworthy."
In Wolf's case, the court required him to make the difficult showing that the investigation was undertaken in bad faith and then held that he had not done so. This is a far cry from balancing the importance of the evidence against the harm being done to the role of the press.
The fact is that the effectiveness of the press is substantially diminished if every reporter is turned into a "surveillance camera" as Wolf has claimed. Perhaps with exceptions for genuinely "terrible" situations, the press cannot function if each crime related story could turn into days of court testimony. The law in California that all involved on the government side have chosen to flout is designed to protect this press function.
First Amendment supporters have called for publicity and protest against the government's tactics. Wolf's web site is http://joshwolf.net/grandjury/