According to C|NET staff writer Erica Ogg, activist and blogger Josh Wolf has acquiesced to a grand jury's subpoena for his video of a July 2005 protest in which the government claims one or more persons attempted to damage a police cruiser.
Ogg incorrectly states that Wolf is the longest-incarcerated journalist in U.S. history, when I believe that honor belongs to an actual journalist in the form of former New York Times reporter Judith Miller, who also gave in to demands for her to testify and give evidence in a criminal probe.
The problems here are many. You can immediately dismiss the notion that a blogger is a de facto journalist because journalists have specific goals in reporting news and seeking the truth, revealing both without bias and to the best of their abilities to do so. I know of no blogger that has made any attempt to hide their bias in any regard, while the overwhelming majority use bias to gain fame and attention.
This is not to say that a blogger cannot also be a journalist, only that a blogger is not the equivalent of a journalist straight out. One does not make the other.
It is easy to tell the difference with a few "tells", where journalists:
Always cite their sources
Double source anonymous information
Respect copyright law
Shun personal bias
Do not become a part of their story
Write more than 250 words
Faux News Channel aside, of course. If you don't meet these minimums, I think it's arguable as to whether or not you are even a respectable blogger, much less a qualified journalist. My opinion not withstanding, more problems persist.
The First Amendments guarantee of the "freedom of the press" is being warped in this case to mean that a journalist is in effect unaccountable to the law for anything they are personally involved in that relates to the dissemination of news.
I believe that this guarantee speaks more to the interest in having a press free from government mandated propaganda and editorial control, where a newspaper is compelled to speak things it doesn't believe. I don't think it was ever intended for the press to be completely free to report anything it wants without legal consequence, and if that were actually the case, libel laws would have been gutted decades ago.
It certainly was never intended to allow a journalist the right not to cooperate with a criminal investigation when the rest of the people in this country have no such right, and indeed this is a principle argument against Congress creating a federal press-shield law.
Of the many things the constitution prohibits, creating a separate class of people that have rights not given to everyone else for arbitrary reasons is one of them, because it is essentially a form of discrimination. It creates scenarios where a New York Times reporter may reveal government secrets without any legal repercussions, but should a private citizen who is not a journalist also reveal such information, they would be liable.
Arguments that a free press is critical to a healthy democracy are persuasive, but ultimately not proven. There has never been a federal shield law on the books in the history of this country, which leads me to believe that claims of grave damage to the press' ability to report controversial and legally questionable information are unfounded at best.
These issues are almost periphery to the questions at hand in the Wolf and Miller cases, however, where their right to speak freely was never in question. That blogger and journalist were jailed for refusing to honor legally binding demands for information from a grand jury, which has nothing to do with the freedom to speak -- unless you contort the freedom to speak into the freedom not to speak, which simply does not exist outside of the fifth amendment.
Ultimately both Wolf and Miller spent time in prison for defying a grand jury, which is precisely the same treatment any other citizen would expect to receive. Both of these people held fast on their principles for a time while they fought for previously non-existent rights in the courts.
Wolf's claims were rejected by a federal district court judge and later a federal appeals court, both of whom recognized no legal right to refuse a grand jury subpoena and upheld the order for Wolf to produce his video tape to prosecutors -- which he has done this week.
Miller's claims were also rejected by an appeals court and that ruling was upheld via refusal to consider by the United States Supreme Court.
It is now well established case law that neither journalists, bloggers, nor activists such as Wolf have a right to ignore and defy grand jury subpoena's and lawful court orders for information regarding their professional or personal conduct in reporting news or information.
There are two important principles at stake here, the right of the press to operate without substantive interference from the government, and the rule of law which requires all citizens -- no matter who they may be or what they do -- to be held legally accountable for their actions or inactions within the justice system.
I do not believe these principles are in opposition to one another, because I said "substantive" interference, not simply interference. The orders in question would not have substantively interfered with either Josh Wolf's or Judith Miller's ability to report information.
In Miller's case, she would still have been free to report any and all information that comes to her in the course of her professional and personal life. Whether or not anonymous sources would choose to continue feeding her information -- while important -- is not something her job is dependent upon. A reporter and journalist can investigate and report news without relying entirely on anonymous sources, and while some stories may not be possible without doing so, it only precludes the telling of those particular stories. It does not preclude a journalist from doing his or her job in general.
If that is the sacrifice that must be made in order to continue the rule of law, then so be it. I do not see the value in a country where the needs and interests of the few are placed above the needs and interests of the many, especially at the cost of law and order.