The 23-year-old San Franciscan possesses a tape that Assistant U.S. Attorney Jeffrey Finigan deems essential to a grand jury investigation of a protest last July that resulted in injuries to two San Francisco Police Department officers.
To Wolf, the government subpoena of his tape represents a threat to his ability to gather news as an independent reporter. He believes it's yet another reel cast in a Justice Department fishing expedition that will stop at nothing to put his activist compatriots behind bars.
To the government, however, Wolf is a misguided, self-important young radical withholding evidence without legal justification. Regardless of the outcome, Wolf's predicament raises questions about how much information journalists should turn over to the federal government, and how the legal system handles those who draw little distinction between citizen journalism and citizen activism.
Though many facts are disputed, all parties agree that Wolf videotaped a July 8, 2006, protest march in San Francisco against the G8 Summit taking place in Scotland. At previous protests, Wolf had attended as an advocate for a cause, but this time he went as a journalist, gathering footage for his videoblog, "The Revolution Will Be Televised" (www.joshwolf.net).
"Most of the time I go out, I feel like I'm a fly on the wall," Wolf says. "Whether or not I agree with what they're doing, my role is to document it."
On the portion of Wolf's video that he released publicly, dozens of protesters, some dressed in black and wearing face masks, marched down the street in the Mission carrying signs and placards with anticapitalist, anti-government slogans or bearing the logo of the group Anarchist Action. Around dusk, things went awry; the tape shows marchers setting off fireworks and dragging metal newsstand boxes into the street to block traffic.
SFPD Officers Michael Wolf (no relation to Josh) and Pete Shields were among those called to the scene to quell what was fast becoming a small riot, with protesters allegedly breaking windows of businesses with baseball bats. When their patrol car was blocked by a very large foam sign under the chassis, the cops exited the vehicle near the corner of Valencia and 23rd. Wolf chased after a man he suspected of placing the sign under the car. In Josh's video, Officer Wolf is shown struggling to cuff the suspect amid shouts of: "Get off him, you're choking him!" and "Hey cop, you're going to jail for police brutality!" Above the din, Officer Wolf heard the sound of fireworks and saw smoke coming from the direction of his patrol vehicle.
Back at the car, Shields attempted to arrest someone lighting fireworks under the vehicle, igniting the foam underneath. Another protester then struck Shields from behind. By the time Officer Wolf returned to the vehicle, his partner was bleeding profusely from the head, the victim of a fractured skull.
Local law enforcement has charged three protesters with misdemeanors. The federal government now seeks justice on behalf of Shields, as well as investigating the damage to his vehicle.
Because he was videotaping Officer Wolf at the time, it's improbable that Josh Wolf's tape also contains footage of Shields being hit on the head or of fireworks being placed under the patrol vehicle. The Justice Department is likely looking for something else that may be on his tape, though they won't divulge what that something is.
Wolf doesn't want to give up the complete, unedited version of the tape. He believes the federal government is indiscriminately monitoring antiwar groups under suspicion of terrorism, and as a journalist he shouldn't be forced to surrender unused footage in support of that investigation. He won't say, though, what's on the 15 or more minutes of the confidential portion of video.
Josh Wolf doesn't look like much of a revolutionary. With slicked, wavy hair, long sideburns, and the heels of his jeans fraying over Eurotrash sneakers, he seems more like a college kid (which he is he'll graduate from San Francisco State this May). Yet Wolf believes that the "corporate media" will collapse within a decade, and, as co-founder of various indie media-related projects, he hopes to help create the alternative that replaces it. But that future hasn't arrived, so Wolf works as outreach director of a community college television station. When he realized his July protest video was worth something, he sold an edited version to local TV stations.
A few days after the protest march, trouble arrived at his door, in the form of a geeky man carrying a briefcase. "Can I ask you a few questions?"
Wolf thought the guy was a reporter. So he opened the entrance gate of the building and let him in.
Then the man flashed his badge: FBI.
The agent, his partner, and two SFPD investigators interrogated Wolf for an hour and a half about the protest. He doesn't remember much of what they asked, other than their wanting to know who struck Shields. Eventually, the investigators asked for his videotape, and Wolf told them he had to speak with his (at the time, nonexistent) lawyer. Wolf dialed the phone number ingrained in his head for years 205-1011 the local chapter of the National Lawyers Guild. He learned that the authorities needed a subpoena to force him to give up the tape. In February, FBI agents served him with one.
Two weeks ago, Wolf's pro-bono lawyers argued a motion in federal court to quash the subpoena before Judge Maria-Elena James. They claimed that Wolf is protected by California's shield law, which allows journalists to maintain confidential unpublished information obtained during newsgathering. The law lets journalists cast a wide net in reporting, even though they may end up seeing or hearing actions that are illegal. Granting the government widespread power to request unused recordings, Wolf's lawyers argued, would turn journalists into an arm of the Justice Department, creating a chilling effect among citizens, thereby violating their First Amendment rights of free speech and assembly.
Of course, this contention assumed that Wolf, a self-appointed citizen-journalist, is every bit as much a "professional" as the men and women with years of experience and an editor reviewing their copy something that's still a matter of debate among the media. Nevertheless, as more Americans become self-appointed citizen journalists, with camera phones and digital cameras and even cheap handheld video cameras, more "news" will come from people like Wolf.
Federal privilege law, which offers fewer protections for journalists than California law, applies in federal court. But it's unclear which federal crimes took place on July 8 and the government has made very little of the investigation public, although its court filing argued that protesters damaging a police vehicle, paid for partly with federal funds, was enough to rouse suspicion of federal crimes. Wolf's lawyers contended that the subpoena was an unreasonable use of federal power to aid local and state investigations.
Wolf called the investigation an FBI witch hunt of anarchists, pointing out that the FBI Joint Terrorism Task Force has monitored many antiwar groups since 9/11, including Indymedia.
To demonstrate that the subpoena was an unreasonable violation of his rights as a journalist, Wolf had to prove that the grand jury was overreaching. He'd been visited by members of the FBI's Joint Terrorism Task Force and the SFPD together, and he cited other recent indiscriminate monitoring and prosecution of suspected anarchists by the Justice Department. However, without access to details of the grand jury investigation, there was little he could prove.
On April 5, Judge James denied Wolf's motion to quash, partly based on an in camera (non-public) review of some portions of the grand jury investigation, which weren't shown to Wolf. It's likely that the government will now re-subpoena the tape.
Wolf doesn't have many options. If he refuses to turn over the tape, he could wait for an arrest warrant, which might lead to jail time if he doesn't cooperate. Or he could wait until the government obtains a warrant to search his apartment, and make it very hard for them to find the video. There's also a slight chance of working out a deal to show the government only a portion of the tape.
In her ruling, the judge noted that the protest took place in public, rendering Wolf's argument of reporter confidentiality "meaningless." Taken to its logical extreme, that reasoning means any recording or reporting done by anyone in public is not confidential, and is the equivalent of transforming the commons into a Big Brother-esque monitored zone. Yet as long as the Justice Department suspects that some federal crime may have been committed, they can subpoena anything that might be applicable to the investigation.
"The Assistant U.S. Attorney said the government has the duty to see if anything suspicious occurred, and then determine if there's a crime," Wolf says. "That's not a world I want to live in."