Original URL: http://casyslantern.blogspot.com/2007/04/acquired-not-by-money-but-by-character.html
Acquired not by Money, but by Character: the Journalistic Credentials of Josh Wolf
by Tom Joad.
On April 3, 2007, blogger Josh Wolf was released from imprisonment after spending 226 days in a federal correctional facility for refusing to comply with a Grand Jury investigating anti-G8 protest activity in San Francisco. The prosecutor demanded that he testify before the Grand Jury, identify his sources and turn over an unedited version of a video he filmed. Wolf refused. In doing so he maintained, and still maintains, that as a journalist he must not be compelled by the US government to disclose his sources, otherwise he effectively becomes an agent of the state. No surprise, those who wished to see Wolf remain behind bars for refusing to cooperate with this political investigation immediately attacked his journalistic credentials.
U.S. District Judge William Alsup called Wolf an "alleged journalist." Mainstream reporters like Washington Post columnist and San Francisco Chronicle reporter Debra Saunders or Washington Post reporter Howard Kurtz have argued to strip him of standing as well. Even solo journalists in less than traditional venues, such as Kevin Sites, freelance war correspondent for Yahoo News, almost theatrically poses the now formulaic mantra: "Blogger Josh Wolf: Journalist or Activist?"
Yet Josh Wolf has clearly met that standard for those concerned with press freedom. He was awarded the 2006 Journalist of the Year award by the Society of Professional Journalists "for upholding the principles of a free and independent press." Others, including editors at the Wall Street Journal - certainly not among the anarchist political set - called for his release. Judith Miller, famous for being recently imprisoned for refusing to out Lewis "Scooter" Libby as a source, also backed Wolf.
However, this did not stop the federal prosecutor from arguing that Wolf - and therefore, virtually all independent journalists - did not meet the statutory criteria for being considered a journalist in the state of California, which has a shield law specifically to protect journalists from such prosecutions.
Legally, this is total horseshit - someone had to say it - because it directly contradicts a unanimous May 26, 2006 decision by California's own 6th District Court of Appeals in O'Grady v. Superior Court of Santa Clara County, where Apple Computer sued bloggers to identify the source of leaked product information.
Justice Conrad Rushing wrote of bloggers that, "In no relevant respect do they appear to differ from a reporter or editor for a traditional business-oriented periodical who solicits or otherwise comes into possession of confidential internal information about a company," thus extending California's shield law protection to bloggers and independent, web-based journalists.
Farther back, in 1972, US Supreme Court Justice Bryon White wrote in Branzburg v. Hayes that, "Freedom of the press is a ‘fundamental personal right’ which ‘is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’ The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists."
Or today, by bloggers. But back in August, at the time of Wolf's appeal, no one in the California courts was buying it. Why the difference? Simple. It is part of the war being waged by the US government on freedom.
The issue has never been the unedited tape itself, now published in its entirety at www.joshwolf.net. The prosecution alleged that a police car was damaged at the protest and they wanted the people who did it identified, their justification for hauling Wolf over the coals. Wolf himself admitted early on that nothing of any relevance was on that tape, and even offered to show investigators it. Instead, they wanted to see him put before a Grand Jury, their purpose in the first place.
What remains at stake is whether journalists (and others for that matter) may be compelled to testify and cooperate in political investigations carried out by the government against those with a certain set of beliefs, in this case, anarchists.
Grand Juries have a long history of being used for such purposes, and in such use, as this investigation into "who broke the cop car's tail light," Grand Juries merely become the vehicle of political witch hunts, eroding our liberties, repressing the right to dissent, and creating a climate of unrestrained and unaccountable authoritarianism and government terror.
That is why Wolf refused to testify, and that is why the government sought to imprison him and now, seeks to discredit him, as a warning to other journalists. It had nothing to do with a damaged police car.
John Peter Zenger: Journalist or Activist?
Worth noting that, in great respect for a free press, the Philadelphia Bar Association each year presents the outgoing Chancellor of the Association with a replica of a small gold box, inscribed with a motto in Latin that translates, Acquired not by money, but by character.
This is an exact replica of a gift awarded to Philadelphia attorney Andrew Hamilton in 1735, presented to him in honor of his pro bono defense of New York printer and journalist John Peter Zenger against the charge of seditious libel.
John Peter Zenger and Josh Wolf, surprisingly, share much in common. Both were imprisoned - Wolf for 7 1/2 months, Zenger for 8 months - after publishing stories deemed dangerous enough by the government of their times to justify imprisonment, ostensibly based on the content alone. Both asserted on their defense principles that remain at the core of press freedom, and public liberty more generally.
The case of John Peter Zenger is as famous as it is decisive. Zenger was a printer; that is, he possessed and operated a printing press. In 1726 he opened his own print shop, one of only two printers in all of the New York colony. The other printer was Francis Harison, a mouthpiece for the corrupt Crown Governor William Cosby and publisher of the New York Gazette.
Opponents of Cosby's rule - Cosby had rigged elections and dismissed a NY Supreme Court Justice for ruling against him in a suspicious and financially self-serving lawsuit - wanted to establish a newspaper "chiefly to expose him [Cosby] and those ridiculous flatteries with which Mr. Harison loads our other newspaper." In 1733 Zenger then became the publisher and editor of the New York Weekly Journal, which became the newspaper of the Popular Party, specifically aimed at bringing Cosby from power.
Immediately, Zenger began publishing articles that exposed Cosby's abuses, like rigging elections by disqualifying Quaker voters, or other articles that vigorously defended the right of a press to publish freely. Cosby twice convened a Grand Jury to issue an indictment for Zenger's arrest on seditious libel, and twice the Grand Jury refused. Cosby then circumvented the Grand Jury and had two judges issue an arrest warrant independent of a Grand Jury indictment, as well as ordering that Zenger's newspapers be publicly burned.
Zenger's bail was set at an impossible to pay (in 1734) £800. His first two lawyers were disbarred for objecting to the two-judge court (the same judges who had issued the arrest warrant). His third lawyer, 60-year old Andrew Hamilton of Philadelphia, would present such a moving and eloquent argument for truth as defense against the trumped up charge of seditious libel, that the 12 man jury, ignoring the Chief Justice's instructions, returned a unanimous verdict of Not Guilty.
Prosecutions for seditious libel in the colonies all but ended after this, a few short decades before the revolutionary pamphlets of Thomas Paine and others, with the threat of jury nullification looming. The concept of freedom of the press, and of speech, began to take shape.
While the details of Zenger's case and Wolf's case differ significantly, the question is fundamentally the same: should journalists be compelled to act as agents or mouthpieces of the state, through cooperation gained by threats of force and imprisonment, or be otherwise be silenced by act of government?
"The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole. Even a restraint of the press would have a fatal influence. No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves." -- James Alexander, writing in the New York Weekly Journal, 1734.
When Hamilton made his arguments before the jury at Zenger's case, he had no legal basis for making such an argument; common law permitted no justification of libel and so, truth could not legally be offered as a defense. Yet Hamilton knew the situation to be unjust, and his defense strategy hinged on the concept of jury nullification, or the right of juries to decide not only on the crime but on the law itself. This decision initiated the idea of press freedom in the United States that was ultimately adopted as part of the First Amendment of the Bill of Rights.
Zenger had absolutely no right under the law of the time to publish articles critical of an agent of the Crown. He had no right either to run a printing press and no special protections as a journalist to avoid imprisonment as the publisher of those critical articles. Yet he did publish them, knowing that his rights only existed if he was able to exercise them.
Zenger never conformed to the modern establishment definition of a proper journalist either: he was not objective, meaning he did not weigh "right" and "wrong" as equally valid. He used his position as a journalist to advocate strongly against injustice and abuse of power, and in a highly partisan manner, printing a political paper that had as one of its stated goals the removal of Crown Governor Cosby from power. His bias - if his distinction should be given that connotation - was very clear, and existed in deliberate contrast to the bias of Francis Harison's pro-Cosby, pro-government newspaper.
So by today's media establishment standards, this made Zenger an activist, not a journalist. He did not work for nor was he affiliated with a large news corporation. He did not hold any special credentials issued by police agency or other arm of government, nor did that government which sought to imprison him recognize any standing as a "journalist," a standing which only came to exist after his trial. Nor was his defense at trial contingent on his refusal to expose any confidential sources, a point also raised about Josh Wolf by some critics.
But John Peter Zenger is widely, irrefutably and rightfully regarded in law and in history as a bona fide journalist.
What has imparted such credentials on Zenger over the centuries?
Simply, he owned and operated a printing press.
To possess and use the means of researching, recording, publishing and disseminating information that is within the public interest, as Justice White restated 35 years ago, has been more than enough to qualify John Peter Zenger as a journalist in the eyes of historians. It has been enough for lawyers. It should be enough for other journalists to recognize. Only the ignorant and the politically malicious deny this.
Josh Wolf is a person who writes, conducts interviews, blogs, reports, advocates, publishes, edits and disseminates news, articles, opinion and analysis in the public interest. And the assault on his freedom should be seen as what it was intended as: a warning from the United States government to journalists everywhere.
Such a government will never speak of greater rights or principles, even when undermining them. It will only, as the US Attorney made clear, focus on the most inconsequential details of an event that is only loosely connected to the journalist in question. Making the government the final arbiter of whether or not a journalist is privileged enough to deserve such rights, which can be ignored, revoked, or dismissed at any time, is to abandon once and for all the idea of freedom of the press. These rights are not the government's, or the courts', to grant or revoke. They do not come with a Fox News paycheck or a San Francisco Chronicle parking pass.
Such credentials, as with the honor bestowed on Philadelphia attorney Andrew Hamilton, are acquired not by money, but by character, something which Josh Wolf has proved beyond any doubt.
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