Blogging To Jail

Josh Wolf, 24, self-described freelance journalist and independent videographer, remains in “custody” at the Federal Detention Facility in Dublin, California, after being charged with contempt because he refused to provide a federal grand jury with unedited video of a 2005 G-8 protest in San Francisco. The authorities wanted the unpublished portions as part of an investigation into crimes that may have occurred during the protest.

Wolf refused, claiming he is a journalist protected under the First Amendment, which is what makes for an interesting case study in the move ta o define a "journalist" in the United States. The primary reason some find it difficult to define Wolf as a journalist is because his experience is primarily as blogger. The secondary reason is that Wolf tends to move back and forth between activism and journalism.

“If I have any reservations about whether or not he is a journalist, it is whether he went there as an independent gatherer of news and information," Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, told the Associated Press in an interview with reporter David Kravets. “We certainly hope that in the future if he goes to these events, he makes up his mind as to whether he is a journalist or a protester.”

On one hand, Wolf does have earned credentials as a journalist, including a 2006 Society of Professional Journalists award for Journalist of the Year. On the other, he has also participated as an activist and is generally seen as sympathetic to left-wing causes. Even journalists covering his incarceration, as well as those who have stepped up to help defend him, are unsure of whether or not he is best described as an activist or journalist.

Generally speaking, the question is easy enough to answer as a professional but difficult to answer as a person: am I an observer reporting the news or an active participant in making the news? And is there a point during some event when I might switch from observing into action? To save a life? To protect an officer? To prevent an abuse of power? In the strictest sense, the answer is no.

Journalists do not become active participants in the story, regardless of the circumstance, as unfortunate as this may seem. It is difficult to discern whether or not Wolf was indeed acting as a journalist, ironically, because the best evidence to determine this is precisely what he has refused to surrender.

I submit the real calamity here is not whether Wolf is a journalist or activist, publisher or blogger, but that when individuals abuse our civil liberties and rights guaranteed under the First Amendment (and I am not saying Wolf has done this), all sorts of crazy judicial opinions are rendered that could have long-term consequences such as the continuing erosion of the First Amendment. Case in point, presiding Judge Alsop offered up “This great country which has allowed you to be a journalist — sometimes your country asks for something back.'’

While his sentiment is sound, his statement is erroneous. There is only one person who ''allows'' another to be a journalist and it is not the government. A journalist is granted privilege by a publisher, even if they are one in the same. It is the publisher who is specifically guaranteed rights in this country as written: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

"The press" is not defined as a journalist in the First Amendment, but rather a publisher. Journalists are hired by publishers to execute these rights. And the only reason there is any confusion today is that the advent of blogging has made it possible for anyone to publish and reach a mass audience. In some ways, blogging has brought the press back to its roots of our forefathers, wherein anyone with enough money to afford a printing press could be a publisher.

Does that mean Wolf is protected? His edited video remains on his site today so there is no injustice there. So perhaps the real question is not whether he is a journalist, but whether or not he was a participant, observer, or acting member of the press. As a participant or observer, withholding the tape is an obstruction of justice. As an acting member of the press strictly covering the protest for publication (by a publisher), he is protected under the First Amendment. Case closed.

Now only if all these fine folks involved would stop working so hard to define 'journalistic rights,' perhaps they could tell the judge to review the tape and determine whether Wolf was a participant or not. If the judge determines Wolf was a participant, then it's a much easier case to decide and all of us will be free from seeing well-intentioned people continuing to muck up our First Amendment with definitions that do not belong there, including blogger, journalist, or whatever.