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February 26, 2007


Cindy Liou

This case is interesting and is related to our collaborative journalism/whistleblower project in several ways. Citizen journalism is gaining credibility, and instead of encouraging active participation in civil society, bloggers (as independent journalists) are being punished for their attempts to democratize existing media formats.

While it is plausible that any citizen can raise the journalist privilege, the case of Josh Wolf involves a man who is dedicated to journalism and abides by journalistic codes of conduct and ethics, as evidenced by his regularly updated website full of news stories. He simply refused to be involved with what he deems to be corporate-controlled media. So while support for Wolf is still based on his identity as a journalist as recognized by others, the average citizen who does not devote nearly as much time as Wolf to such activities may not elicit such support. The average citizen journalist or blogger is even more susceptible to legal implications involving their activities or sources.
I would also recommend citizen journalists to guard their privacy by developing protocols to protect their unedited material and sources. The Electronic Frontier Foundation has tips on “How to Blog Safely” on their website that they should consult, offering good advice on how bloggers can protect themselves, such as using anonymous blogging tools like “invisiblog.com” and “anonymize.com” to protect your real identity.

As a side note: it is also important to know what laws apply to you—federal or state. Apparently Josh Wolf could have possibly been protected by the robust California Shield Law, but there is no federal shield law. The strange thing is that they are asking him to turn over footage regarding arson of a police car, which should fall under the domain of state law.

Seeta Peña Gangadharan

To your aside: Wolf is being federally prosecuted due to the fact that the San Francisco police force receives some federal funding through Homeland Security. And yes... there is no federal shield law. Not yet at least. (See http://www.media-alliance.org/medianews/archives/003104.php)

But here's a long-winded coda to your thoughts on protections for journalists...

In an interview conducted on Democracy Now! (http://www.democracynow.org/article.pl?sid=07/02/12/1540208), Wolf speaks in a way that seems to contradict the position and concerns of pro-shield law advocates.

When asked during the interview whether he plans to stay involved in journalism once released, he states:

"Absolutely. This has just made me more determined to get the stories that are not being covered out than ever before, because someone needs to cover this. There's a lot of people that are, but we need more. Every single person that can stand up and document injustices they see around them is one more person that will help lead towards an understanding and enlightenment of our society about what's really going on."

So, despite what the fears of, for example, the dissenting judges in Branzburg v. Hayes (http://www.oyez.org/oyez/resource/case/48/), here imprisonment is inspiring that same journalist to do even more... to engage in activist journalism and continue the effort to expose political dissent and social injustice in a media system that is for the most part corporate-controlled.

Should this statement by Wolf serve as intellectual fodder to dismiss shield laws?

I don't think so. I think it's unfair to say, "See... even the longest-jailed journalist in the history of the United States isn't chilled... so shield laws aren't really needed." I commend Wolf for being emboldened by his experience rather than defeated. So I agree with you that it is doubtful that others will be as resilient and determined as Wolf.

But more generally, I have doubts whether the validity of shield laws can hinge upon empirical evidence of the chilling effect.

The first step in an empirical study to prove this would be virtually impossible. Designating the "universe" of journalism would be problematic. You'd have to count bloggers, independent journalists and other non-institutionalized journalists. And, as we know from the web... discursive online activity is a moving target.

With that said, I again return to the Meiklejohnian concept of self-government as guiding criteria; over and above an un-critical embrace of privacy for all journalists, we need to think of the purpose of media-making. I don't think we should accept journalists' independence and right to privacy as a given.

In other words, maybe the questions we should be asking in this debate are:

Are there some types of journalistic activity which requires privacy protections and others that do not?

While I stand by Josh Wolf's cause, I do not support the type of special protections sought by Judith Miller (http://en.wikipedia.org/wiki/Judith_Miller_%28journalist%29). It strikes me as possible that federal shield laws might ironically lead to more synergistic activities between the Judith Millers of the world and government, rather to the promotion of the journalistic endeavors of the future Josh Wolfs.

Beth Simone Noveck

And thoughts on the corporate blogging controversy in the Apple case last year?


Seeta Peña Gangadharan

That's a tough one. Following the Meiklejohnian perspective, I'd have to make a case that there was some social/political value (related to self-government) in posting company secrets. That seems a stretch. You could say posting company secrets links with consumer rights, but it's not evident here.

That doesn't mean, however, that I discount the notion that bloggers don't serve an important journalistic function. Many bloggers are journalists--but it's important to think beyond the criterion of "they post stuff."

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