April 2012 podcast: New film tells story of young journalist imprisoned for protecting a source



Filmmaker Donna Lee and attorney David Greene discuss the new film "Activist Blogger," about a young journalist who spent 226 days in prison for contempt of court.

Frank LoMonte: Hi, thanks again for joining us on the Student Press Law Center’s monthly podcast. I’m Frank LoMonte, the executive director of the SPLC and on the podcast we talk to people who are making news in the courts, on campus and in the media about things student journalists need to know.

In a minute we are going to talk about what it’s like to spend almost eight months in prison defending your rights as a journalist with the maker of a new documentary film, “Activist Blogger.”

Remember that if you need legal information, chances are the Student Press Law Center has it as www.SPLC.org and remember that the SPLC is a nonprofit powered by the support of donors like you.

Josh Wolf who graduated from San Francisco State University in 2006 and went onto graduate school at Berkeley, is the answer to a trivia question that he would rather not be and that trivia question is: Who is the American journalist who has spent the longest time sitting in prison for defying an order to testify before a grand jury.

Josh got sucked into the legal system because he was on the scene shooting video for a documentary film when a protest against the G8 global economic powers turned violent and resulted in clashes with police.

Josh spent 226 days at a federal correctional institution while his lawyers fought to convince the court that Josh had a First Amendment right as a journalist not to give up the video he shot or to give testimony in a federal investigation. Josh got legal representation with help through the National Lawyers Guild and one of his former attorneys David Greene is here to help flesh out the back story. David is the long time executive director of the First Amendment Project and is now the senior council in the San Francisco office of ___ an outstanding law firm in specialties that include media law.

Also with us to talk about the Josh Wolf case is filmmaker Donna Lee, whose film about the case “Activist Blogger: The Josh Wolf Story” is just out on DVD and is being marketed especially for use in college and high school journalism classes as a way of teaching about the importance the reporters privilege. Donna began making this film as a project for a college video class and she has worked as a producer, director and writer on several other documentaries as well. W

Well Donna and David, welcome to the podcast. David let’s start with you, please give us a little set up about who is Josh Wolf and why might this story have come out very very differently had Josh been dealing with a state court in California rather than a U.S. district court.

David Greene: Yeah thanks Frank. I’m happy to be on the podcast. Josh at the time, when this happened, was working at a community college television station on the technical side. But he actually shot this video to distribute through his own website. He had a video blog and the video was—his intent was to self distribute through his video blog and he was ask affiliated through ND media as well.

So, he covered the G8 protest and during the course of the G8 protest, two things happened. One is that—and the main protesters were identified with a, small a, anarchist group. Two things happened over the course of this protest: one is that a San Francisco police officer was assaulted and the second thing is that a San Francisco police car drove—there was a large piece of, I believe it was a piece of foam, and was being used as a sign. It was dropped to the ground and it was lit on fire, we’re not quite clear. It was on fire and the car sort of drove on top of it, sort of got stuck on it. There was a possibility the car was going to catch on fire, which it did not do that.

Anyway, Josh recorded a video of it, he posted it. He posted an edited version of the video on his website and also to indie bay (??) and then it was picked up by at least two local news programs, rebroadcast the video on their news programs.

This brought it to the attention to the FBI, which was investigating this incident and the FBI found him and when to his house and told him they wanted to see all of the video he had shot. He declined. He got himself some lawyers and ended up in a process where he went before a judge and tell the judge the FBI was issuing him a subpoena to appear in front of a grand jury and to produce his video and answer questions in front of a grand jury. He declined and was ultimately held in contempt of court, which sent him to jail.

He appealed that contempt order to the U.S. Court of Appeals for the Ninth Circuit and the Ninth Circuit denied that appeal and he was sent back to jail. He’d actually been let out while the appeal was pending and then he stayed in jail.

Again it was a total of 226 days. His lawyers tried to get him out. There were certain procedural devices to try and get him out and ultimately we were able to negotiate his release and I can talk more about that.

Frank LoMonte: Well, California has an excellent reporters privilege for cases that are brought in state court and in fact there is a precedent for unpaid college journalists being able to invoke the protection of the shield, but obviously that was no help in this case. Why not?

David Greene: That’s true, right. The investigation was being conducted by the FBI, by the federal law enforcement and the subpoena that they issued was a federal court subpoena. So, something that a federal judge would enforce and there is no federal shield law and the federal constitutional protections, the constitutional protections that federal courts recognize that do exist offer very weak if any protection against grand jury subpoenas.

So, had he been subpoenaed either in state court, California has a very strong shield law, which would have protected him or would likely would have protected him, or if he’d been subpoenaed in a different kind of federal court proceeding, he would have much stronger legal protection.

Frank LoMonte: So, ultimately you were able to negotiate a resolution to get him out of jail after 226 days. How did that come about? What was the conclusion?

David Greene: Well what we did was we had—I should say I joined his legal team after he’d been release from jail the first time and was appealing this to the Ninth Circuit. My First Amendment Project was brought on to the legal team just to assist his existing lawyers primary because his lawyers had vacations scheduled, which they had kept on putting off and couldn’t do that anymore. That coincided with some of the briefings scheduled. So, that’s the point that I became involved in.

One of the things we did was once his appeal was denied and he was in jail, there’s a procedural device called a grumbles motion, which essentially places limits on how long someone can be in jail for contempt. And you have to convince the judge that, first of all, when you’re in jail for civil contempt, the idea is that you’re not being punished. The idea behind being in jail is not to punish you, it’s to coerce you to comply the subpoena.

So these things called grumbles motions, which are named after a case involving the Grumbles family, you have to convince the judge that the person in jail is not being coerced and will not be coerced and that they have a strong moral principle upon which they are resting their beliefs.

So we brought two of those motions. We brought one and it was rejected and then we waited a while and brought another one. When we brought the second one, the judge said ‘I’m going to reject this motion, but I’m going to send you to a federal magistrate to see if you can negotiate a release.’ And that started a several week process, meeting with magistrate where ultimately we were able to find a way of getting him out of jail.

Frank LoMonte: On a human level, you’re talking to Josh Wolf during this ordeal while he’s incarcerated. Was this something that he was at all prepared for and how did he deal with that?

David Greene: Yeah, you know it’s a good question for Josh. We did visit him at least once a week. There were three of us in First Amendment Project working on this case and we made sure at least one of us went to see him at least once a week and often among the three of us we would be there more than once a week. It’s difficult being in jail. It’s tough being in jail and frankly it’s hard to visit in jail and you’re the one who gets to leave. It’s hard being in jail and it was very difficult, but I do say, we filed our grumbles motion saying that he was very firm in his convictions and that although he was not enjoying this time at all—he desperately wanted to be out—that the confinement was not coercing him and he was prepared to stay there as long as he needed to.

Frank LoMonte: As I understand, he went ahead and did post the unedited video on his own website, but never did give the testimony. So, it’s something of a compromise.

David Greene: What had happened was that way before I was on the case, Josh—through his attorneys—had offered, he was never that concerned with that video, what he was concerned about doing was having to sit for testimony and they were going to show the tape and go through and ask him questions frame by frame. That’s what he considered highly intrusive on his news gathering process. And I think we can all agree.

Frank LoMonte: Absolutely.

David Greene: That proposal, ‘I’ll show you the tape, if you promise not to ask me questions’ had been on the table for a very long time and one of the things we went to mediation that was the starting point and ultimately what was agreed was that Josh, instead of just giving them the tape, was that Josh would publish the tape generally. Then once it was public, he would have no ability—then the FBI was as entitled to it as everybody. In exchange for them agreeing not to ask him questions and what we ended up doing though, the FBI submitted I think it was three or four questions they wanted the answers to, in which the answers were: Josh has no idea. He just doesn’t have the information your’e seeking. So, what we said was “we’re willing to answer those four questions in exchange for you not asking anymore.” And that was essentially what got him released.

Frank LoMonte: Let’s switch to Donna Lee. Donna, why was this story of such interest to you and what did you think was worthy of treatment in a documentary film?

Donna Lee: Well when I first met Josh, he was actually running for mayor of San Francisco. And I was not familiar with his case or his story. I was working, traveling and living outside of California quite a bit during much of his imprisonment.

So when I met him, it was actually at a meeting of people that were interested in working with media or working in media. What I found was that he was running for mayor of San Francisco, which I though was very interesting because it was a very young man. He was a bout 24, 25. And then when I learned about the rest of his story, the fact that he had just been released from prison a few months prior, that intrigued me. I wanted to know what had led him to prison and why was he running for mayor of San Francisco.

When I had the chance to do this documentary as you mentioned during the intro, after I left my previous position, I ended up taking a film class and Josh’s story came to mind as something I would love to do as a documentary because I wanted to know what the issues were and what led this young guy to spend more than six and a half months in prison. I thought that the fact that this guy was a willing to spend all of this time in prison for his principles was fascinating and worthy of storytelling, worthy of a film.

Frank LoMonte: Yeah, I wonder since this is ultimately a matter of journalistic principle, do you think that this is the kind of story that a journalist viewer and a non-journalist viewers going to a respond to in very different ways? If I’m a non-journalist and I’m watching this video, aren’t I just going to be throwing things at the TV and saying ‘just go testify get out of prison already!’ maybe without appreciating the larger journalistic principle at stake here?

Donna Lee: So this film has obviously been shown to both journalists and non-journalists and the feedback that I’ve gotten has been very positive on both ends. The non-journalists have said to me “you know this was really though-provoking.” I myself was not aware of shield laws. i was not aware that there are state shield laws in about, I believe, 39 states. Is that right David?

Frank LoMonte: I think 40 now.

Donna Lee: So, 40 states. But there was no federal shield law. I was not aware of these kinds of issues so for me personally it was a fascinating topic for me to understand and investigate and research as I was researching the story and interviewing all these people that are in the film. The non-journalists who have seen the film, they were also really interested in the fact that this young man had stood up for his principles had, had stood up for the First Amendment, and yet there are these questions of what’s happening in the journalism community right now—the fact that bloggers and what people are terming “citizen journalists” are going out and filming footage of incidents that are happening and putting it directly onto the the web instead of going through the traditional channels that newspaper journalist would do. And so I think that the feedback that I’ve gotten from non-journalists is that they were very interested and that they learned quite a lot.

Frank LoMonte: Do you think that this is one of the things that is perhaps going to force people to confront and think about is this whole idea of who is a journalist now and make people ask themselves and answer whether they think Josh Wolf, as you say is an activist who is somebody who is not Walter Cronkite, is a journalist who should be entitled to the same legal protection as journalists?

Donna Lee: Well, I think that’s a question that I myself was asking as I was making the film. It’s quite an interesting one and as the film presents the history of journalism in the United States started off with people like Benjamin Franklin who were creating these little newspapers, and they were activists themselves—Thomas Paine. Josh talks about Thomas Paine a lot and sees him as a role model for the stance that he took. I think that it makes us really think about the history of this country and what the Constitution and the First Amendment stand for. The shift—the history of journalism in the last several hundred years—and then the shit now toward the new media, these bloggers and citizen journalists who are gathering information and, you know, sharing it directly with American citizens and the world actually, you know, now globally. So, I think that it’s an interesting question that is being debated as a we speak probably.

Frank LoMonte: Yeah.

Donna Lee: Although, probably, you know maybe it’s coming to more of a moot point because these journalists are out there disseminating information.

Frank LoMonte: Sure, that’s a great point. I mean the profession and the technology are really evolving in a way that is in a lot of ways faster than the law can evolve and can catch up. Let me ask each of you, starting with Donna, what lessons do you think there are for young journalists who are watching the “Activist Blogger” film, what lessons are there to learn and how are maybe hoping people will use “Activist Blogger” in the classroom?

Donna Lee: Well there was recently, the Pacific Media Workers’ Guild, which is a local journalists association here in Northern California, hosted a screening of this film for their freelance unit in San Francisco. I was very pleased to see that it got a very appreciative and welcome reception. A lot of the journalists that were in the audience, I think they learned quite a bit about the fact that what their rights might be. We had Jim Wheaton worked also at the First Amendment Project and he was there answering questions and getting information about the legal rights that journalists have and things to avoid, you know, when you go out and are covering an incident.

I think there are issues that some journalists, especially young journalists, may not be aware of that they may be subject to getting their cell phones taken away and searched.

So, there are absolutely legal issues that are covered in the documentary but also the history of journalism in the United States and the shift that we’re now taking toward journalism becoming much more of a widespread, you know, field. I think that’s much more of a complex issue now with the internet and with people being able to videotape and archive things on their cell phones and put it directly on the web.

So, these are issues that I think young journalists need to be aware of and what their legal rights are.

Frank LoMonte: Yeah, David, just a minute or two from you: thoughts about that any cautionary words or lessons perhaps for students to take away after seeing Josh Wolf’s story?

David Greene: Well, I think the best things students can get out of it is realize how easy it is for them to become embroiled in a similar situation and how important it is to know your rights when you are that situation. It’s not just knowing your rights because you decide you want to take the stand, it’s knowing your rights just so you can make the decision about what you want to do.

For a lot of the students, sometimes they feel like these instances are so far away from them. That’s something that if it’s going to happen, it’s going to happen way later in their career, and that’s just not true. Josh was certainly in a position much closer to where they are now than he was to a sort of established professional journalist.

Frank LoMonte: Absolutely, and we’re sort of seeing that in instances such as Occupy, that student journalists are getting into harms way and are going to jail right alongside the professionals and I’m sure we’ll see that more and more. Donna just close us out by explaining to people if they’re interested in seeing the activist blogger film, where can they order copies of the DVD?

Donna Lee: Well, currently I just have an educational DVD out because as we’ve just been discussing, I believe this would be a wonderful, very informative teaching tool for classrooms and colleges throughout the United States as well as journalism schools and law schools. My website to purchase the educational DVD is www.ActivistBloggerFilm.com. I am planning to make it available to the general audience as well, but I have not yet done that. But, I also welcome feedback and suggestions to how people would like to see the film.

Frank LoMonte: That’s great. I’m going to say that one more time: www.ActivistBloggerFilm.com and we definitely hope that people will check that out and will benefit from using it. We hope that this will help call attention to the need for a federal reporter’s privilege law that is as good as the one in California and in 39 other states. Well, I want to close out by thanking Donna Lee and David Greene for helping bring attention to this very interesting and instructive case and for being with us today on the SPLC podcast.

If you, in the audience are a photojournalist or a videographer and you’ve got questions about your legal rights we hope that you’ll checkout all the resources available on the www.splc.org website. We hope you’ll join the Student Press Law Center’s group on Facebook and follow @SPLC on Twitter. And before you become famous for spending eight months of your life prison, remember that our attorney hotline is a just a call away at 703-807-1904 or you can email questions to spcl@splc.org. Thank you for listening.