Volume 40 Number 47

A freelance documentary filmmaker is in jail in Dublin, CA, for refusing to comply with a subpoena to turn over to federal prosecutors the out-takes of his filming of a 2005 street demonstration that turned violent. And two San Francisco Chronicle reporters are packing their bags for jail while they appeal contempt judgments for refusing to reveal to federal prosecutors their sources for evidence given the grand jury in the BALCO investigation.

If I were Governor Arnold Schwarzenegger or California Chief Justice Ronald George, I would be deeply troubled by these developments—not only because of the First Amendment issues at stake, which are huge, but because these federal actions against journalists in California represent a wholesale usurpation of state sovereignty. The Bush administration, which has been justly criticized for attempting to enhance executive power at the expense of Congress, is now eviscerating states’ rights in order to expand the power of the federal government.

William Rehnquist, the conservative former Chief Justice of the U.S. Supreme Court–and intellectual champion of American “federalism”—is no doubt turning over in his grave.

California, like the District of Columbia and every other state except Wyoming, has enacted a “Shield Law” to protect the news media’s independence from government and to assure public access to information about wrongdoing in high places. (Memo to media: stay the hell out of Wyoming.) California’s Shield Law, enacted both as a statute and constitutional amendment, protects the press from subpoenas demanding access to confidential news sources and unpublished information. State shield laws, however, don’t apply in federal proceedings–and the feds have no shield law of their own.

The U.S. Justice Department, in these two California cases and others, had a choice to make: It could defer to the nearly unanimous judgment of the states, or it could decide–states’ rights be damned–that the federal government would insist on enforcement of subpoenas that would be void or illegal in nearly all state courts. It chose the latter.

And so Josh Wolf, the freelance filmmaker whose unused digital film California voters clearly meant to protect from compulsory judicial disclosure, is in jail. And Mark Fainaru-Wada and Lance
Williams, the Chronicle reporters who wrote about the BALCO case, will soon be in federal detention unless the U.S. Court of Appeals for the Ninth Circuit can be persuaded to change course.

The Justice Department’s enforcement proceedings don’t just undermine a valid state policy, they completely nullify it. This is so because reporters and their sources have no way of knowing, at the time of an interview with a source or the filming of a news event, whether a subpoena will issue from a California state court–in which case it can be safely ignored–or from a federal court, in which case it will be enforced through fines, jail, or other sanctions. Since the only safe strategy is to assume that one could end up in front of a federal judge, the state shield law is effectively voided.

To appreciate the extent of federal usurpation of state authority, imagine that the feds were disregarding, not state shield laws, but the attorney-client privilege (which is also a creature of state law). The reason for the privilege, which is recognized in all states, is to encourage people to seek legal advice and to fully disclose relevant information to their lawyers, who are bound to secrecy.

If the U.S. Justice Department took the position that the attorney-client privilege did not apply in federal proceedings, most legal clients, not being able to predict where and how their communications with their lawyer might be sought, would behave as though the states’ attorney-client privilege did not exist. They would not seek legal advice. They would not speak openly with their lawyer.

The feds’ takeover of state sovereignty is especially egregious in the Wolf case. The street demonstration that was caught on Wolf’s video camera involved self-styled anarchists who, in a July 8, 2005 rampage through downtown San Francisco, destroyed property, resisted arrest, and assaulted and injured at least one San Francisco police officer. The persons responsible most certainly should be prosecuted–in state court by state prosecutors and under state law (including the shield law).

How did this quintessentially state law matter become a big federal case? According to their pleadings in U.S. District Court, federal prosecutors assert federal criminal jurisdiction based on damage to a police car, which had been purchased partly with federal assistance. I’m not joking. And the damage to the police car, which is disputed, may have been limited to a broken taillight!

Bad enough that California’s authority is neutered by the feds. Far worse that it is neutered in a case in which a genuine federal interest is nonexistent–indeed, where the putative federal interest is, patently, a pretext for an end-run around California’s shield law.

It’s time that the federal courts wised up and put an end to this. The current appeals of the Wolf and Chronicle cases to the Ninth Circuit Court of Appeals provide an opportunity for the federal judiciary to rein in the Bush Justice Department, reassert the primacy of state law in the area of evidentiary privilege, and highlight the importance of a news media that is–and is seen as–independent of government investigators.
———-
Peter Scheer, a journalist and lawyer, is executive director of the California First Amendment Coalition,