By Bruce B. Brugmann
Marvelous. Simply marvelous. While ten of the l9 witnesses testifying in the Libby trial were singing journalists, and three of them were central to securing Libby’s conviction, Howard Kurtz, the media critic of the Washington Post and the voice of the inside-the-beltway media establishment, did not raise any of the obvious issues and questions in this unprecedented mass outing of sources by journalists in federal court in Washington, D.C. It was a “spectacle that would have been unthinkable only a few years ago,” as Adam Liptak put it rightly in the New York Times March 8.
Instead, one day after the Libby guilty verdict, Kurtz went after Josh Wolf, the longest jailed journalist in U.S. history for contempt of court, in his March 8 column headlined “Jailed Man Is A Videographer And a Blogger but Is He a Journalist?” Kurtz, who tosses softballs about every Sunday morning in his media show on CNN, hit Josh hard with a lead that said, “He is being cast by some journalists as a young champion of the First Amendment, jailed for taking a lonely stand heavy-handed federal prosecutors.”
Then: “But Wolf’s rationale for withholding the video, and refusing to testify, is less than crystal clear. There are no confidential sources involved in the case. He sold part of the tape to local television stations and posted another portion on his blog. Why, then, is he willing to give up his freedom over the remaining footage?”
And then he quoted, not a media lawyer nor a journalist with knowledge of
California law, but a professor who ought to be flunked out of law school (Eugene Volokh, a law professor at the University of California Los Angeles). Kurtz quoted Volokh as saying without blushing, “It’s one thing to say journalists must respect promises of confidentiality they made to their sources. It would be quite another to say journalists have a right to refuse to testify even about non-confidential sources. When something is videotaped in a public place, it’s hard to see even an implied agreement of confidentiality.”
Tom Newton, general counsel of the California Newspaper Publishers Association, had the appropriate polite response in an email to Kurtz: “Huh?”
“That, as they say, would be a settled right in California. In California, the people have flatly rejected the idea that police and prosecutors ought to be able to deputize journalists whenever they can’t figure out how to do their job themselves.”
“Moreover,” Newton continued, “the test for whether Josh is a journalist or not should not be based on who the U.S. attorney says he is, (“simply a person with a video camera”), or even who Josh says he is (an “artist, an activist, an anarachist and an archivist”), but on what he does and what he was doing when gathering the information at issue (i.e., creating videotape of a public and newsworthy event and actually selling portions of it for a profit to a news organization which made it part of the local evening TV news).” Read Newton’s full comment below.
So, when the chips are down and the question is raised in time of war, who stood the test of being a real journalist? Josh Wolf, who went to jail on principle, and is still there, and may be there until a new federal jury is impaneled in July? Josh Wolf, who was put in jail in my view by the Bush administration to send a don’t-mess-with-us message to anti-war protestors inside and outside of San Francisco and to journalists at large. Or the l0 journalists warbling away in federal court and thereby avoiding jail (excepting Judith Miller from the New York Times, who did jail time but still ended up testifying)?
I stand with Josh Wolf. I think he is not only a real journalist in the best sense of the word, but a journalistic Hero and a First Amendment Hero who is paying his dues and more every day he serves in federal prison in Dublin, California. As for Howard Kurtz and the Washington Post and the inside-the-Beltway gang, well, they helped George Bush march us into Iraq, no real questions asked, and they are now helping keep us there with this kind of logic and reporting.
There are lots of real questions for Howard Kurtz of the Washington Post/inside the beltway gang who asked the is-Josh-a-journalist question the day after the verdict and to some extent for Debra Saunders of the San Francisco Chronicle who asked the same question a few days before the verdict. The questions do not involve whether whether Josh Wolf is a journalist or not. The questions are, how in the world did those hotshot inside-the-beltway journalists with access and those hotshot inside-the-beltway media organizations with access so screw up the story of the biggest foreign policy mistake in U.S. history? And how did they so screw it up when millions of us without access, in San Francisco and around the world, figured out the real story, knew it was a terrible mistake to go to war with Iraq, and went into the streets to protest the decision? And when will they start reporting the real story behind the Libby trial: that Bush and Cheney lied us into war, that Libby was key to the much larger story of the cover up of the campaign of lies, that the war is now lost but the lies go on, and that our only option left is to get out as quickly as possible? Kurtz and the inside-the-beltway gang are the journalists who have the explaining to do, not Josh Wolf.
Newton’s email to Kurtz:
“While the national attention on shield law issues has focused almost entirely on the protection of confidential sources, out here in California we have for many years granted journalists the ability to protect both their confidential sources and unpublished information associated with newsgathering. Had the San Francisco situation not rather bizarrely become a federal case (it was, after all, an incident involving a San Francisco crowd, a San Francisco peace officer and a San Francisco police car), there would be no question that Josh, assuming for a moment he is a journalist covered by California law, would be immune from a contempt order for his steadfast refusal to disclose his unpublished information to a state prosecutor. This immunity is squarely set by popular vote in the state’s constitution (Article I. Sec. 2).
“I am totally puzzled by this quote in your column from an esteemed constitutional scholar: “It’s one thing to say journalists must respect promises of confidentiality they made to their sources,” says Eugene Volokh, a law professor at the University of California at Los Angeles. “It would be quite another to say journalists have a right to refuse to testify even about non-confidential sources.” Huh? That, as they say, would be a settled right in California. In California, the people have flatly rejected the idea police and prosecutors ought to be able to deputize journalists whenever they can’t figure out how to do their job themselves.
“Moreover, the test for whether Josh is a journalist or not should not be based on who the U.S. Attorney says he is, (“simply a person with a video camera”), or even who Josh says he is (an “artist, an activist, an anarchist and an archivist”), but on what he does and what he was doing when gathering the information at issue (i.e., creating videotape of a public and newsworthy event and actually selling portions of it for a profit to a news organization which made it a part of the local evening TV news). Based on a recent California case involving a blogger’s attempt to quash a subpoena pursued by Apple in an attempt to identify an internal leak, it’s clear to me Josh would be found to be a journalist for purposes of California’s Shield Law and would be a free man right now, but for this becoming a federal case.”
Full disclosure: I asked CNPA, as a member publisher, to support Wolf, his cause, and a federal shield law. To its immense credit, the CNPA board and staff rose to the occasion and has supported Wolf, a member of no media organization, with skill and passion. From CNPA to the Society of Professional Journalists to the California First Amendment Coalition to the International Free Press Institute in Vienna to other international free press groups to labor unions to the grassroots movement of Andy Blue and Julian Davis in San Francisco and beyond, this is quite a massive and growing coalition of the willing for Josh Wolf. Keep it rolling till Josh is out of jail and the U.S. is out of Iraq. B3