A blogger behind bars

Comment is Free asked me to write a post on the blogger just jailed in California. It’s written with a UK audience in mind, thus the extra background:

The New York Times reports today what may be the first case of a blogger jailed by a US federal court for not handing over sources or source materials for a story – a case that will raise no end of questions about the rights, responsibilities, and protections of citizens acting as journalists.

Josh Wolf, a 24-year-old blogger and freelancer, had shot video of a San Francisco protest over the 2005 meeting of the G8 in Scotland. Violence ensued, a police officer’s skull was fractured, and authorities say a smoke bomb or firework was put under a police car. Wolf sold some of his video to local TV stations and put more up on his blog. Prosecutors demanded that Wolf testify before a grand jury and hand over everything he shot. Wolf refused and, yesterday, a federal judge found him in contempt and sent him to prison, where he could stay until the grand jury’s term expires next summer. Soon after, a post appeared on his blog asking for donations, thoughts, and prayers under the headline, “Josh is in jail and this is his mom”.

Wolf had argued that as a journalist he has a right to protect his sources. But the federal government recognizes no such right and efforts to pass a shield law in Congress have so far failed. That is how then-New York Times reporter Judith Miller landed in prison for not revealing her sources in the White House leak of a CIA officer’s name. And just yesterday, a federal appeals court ruled that the government could obtain phone records from Miller and a colleague in a separate case involving two Islamic charities the government says were tipped off to raids against them.

California does have a shield law that provides such protections to journalists – though debate is starting about who is a journalist. This was a crucial point in a recent case Apple opened against bloggers who’d scooped the company’s plans. The company dropped its complaint after an appeals judge ruled that bloggers do not “differ from a reporter or editor for a traditional business-oriented periodical”. The court said: “We decline the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalism.’ The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here.”

Bloggers cheered.

But all these raises no end of Gordian questions:

• Should journalists have the right to protect their sources? Journalists accept as holy writ that we should. How else can we function watchdogging the governing and the powerful? How will whistleblowers and sources ever feel confident to come forward and share what they know?

• But if the internet allows anyone to publish, then who should get such protection? In Congress and the courts, arguments are ensuing over whether bloggers are journalists. I say that’s the wrong argument. Journalism isn’t defined by who makes it (and, in fact, trying to do that is a dangerous attempt to certify journalists, giving authorities the means to decertify them). Journalism is an act. I say that if one journalist’s act of reporting is covered, then all must be. And the journalists are not necessarily opposed. At a symposium on this topic, New York Times Executive Editor Bill Keller said: “The NY Times should be exceedingly humble about trying to decide who and who is not a journalist since we meet the test … and it feels like pulling up the ladder behind us.” Still, he wasn’t sure which bloggers should qualify.

• But what is to stop any witness to a crime from blogging and claiming to be a journalist, cutting off prosecutors from evidence needed to try criminals? Yes, what would stop Tony Soprano from blogging to claim the shield: ‘I’m what you call a citizen journalist. You godda problem wid dat?’

• And what are the responsibilities of journalists as citizens to report crime and aid the prosecution? I was in the habit of calling bloggers “citizen journalists” (I’ve since updated my blogictionary and now call this networked journalism because, as I said above, it’s dangerous to define journalism by who does it). Oftentimes, when I used the phrase “citizen journalist,” professional journalists would complain to me, “Well, we’re citizens, too!” Indeed, we are. So what is our responsibility to society in criminal matters? Some say Judith Miller witnessed a high crime in the White House and should have reported it to prosectuors. Others might say that if Wolf has evidence of a cop getting bashed and refuses to hand it over, he is doing nothing less than aiding and abetting the crime.

• But then on the other, other hand, if all journalists and all citizens who may witness news and thus perform acts of journalism now fear subpoena, contempt, and prison, what chill will this put on news reporting? The price of knowing becomes high. So in this case, instead of Tony Soprano becoming a blogger, we call become Tony Sopranos: hearing, seeing, and speaking no evil.

• Some argue that a line should be drawn at criminal activity, that a reporter should be shielded except in cases where a crime was committed. But that, too, falls apart. If, for example, the White House committed a crime in its National Security Agency phone snooping, would that then make a reporter’s sources vulnerable to exposure or the reporter still vulnerable to imprisonment?

Blogging was a helluva lot easier when all we wrote about was our cats.