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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 They claimed that Wolf is protected by California's shield law, which allows journalists to maintain confidential unpublished information obtained during newsgathering.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."