Is the implied relationship actually relevant?
I was watching “Cranky Geeks” (www.crankygeeks.com/) today and the program for the week centered around the case of Josh Wolf, the blogger/journalist who set the record for the longest stretch in jail for refusing to honor a subpoena for his video work and information to a Federal grand jury.
Why it was even a Federal case is somewhat questionable but since it involved a protest over some sort of World Summit the Feds decided to pretend it was a terrorism issue (anything involving protests by or about or near foreigners must be terrorism, right?) and took over a case of 'assault on a police officer' in an attempt to 'get the goods' on some unspecified 'domestic terrorists' (which of course anyone who disagrees with the administration must be).
As I understand it, Josh has an established blog on which he covers this sort of event whenever possible and he was on hand for the protest and taking video which he then posted, edited down of course, on that blog. Several local TV stations scarfed his video from the blog and used it in their newscasts regarding the summit and the protest, etc. When Josh became aware of this he notified the stations of his copyright and billed them for the usage and they all paid up. The problem arose when the Feds saw the TV reports and asked the stations where they got the footage and thus found Josh. They insisted Josh turn over all the outtakes and answer questions about everything and anything they wanted to ask in front of a grand jury. Josh refused to honor this blanket request and, to make a long story short, ended up getting cited for contempt even though he offered to let the Judge view the tape outtakes so they could see there was nothing relevant in them and even though he had been taping at a place nowhere near where the officer was assaulted and there was no reason to believe that anything on his tape outtakes could have any relevance to that matter.
In fact it is clear that his refusal to 'give' them the tapes was never really the issue. They were never physically hidden and had the authorities had any grounds to do so they could have seized them under a search warrant at any time and presented them to the grand jury.
He was finally released when the authorities agreed that if he published the outtakes on his blog they would be satisfied. He agreed and was released and did so.
He had offered basically the same in the beginning but that was apparently not good enough. It would appear that, as he thought, the Feds were actually more interested in getting him under oath in front of a grand jury to be questioned about the people he may or may not have known within the protest movement (he has a history of covering and having a relationship with anti-government protesters of various types) then they actually were in what was shown in the outtakes, and not having any grounds to subpoena him directly, went after his video and his explanation of it instead.
Combine that conclusion with the fact that there is no Federal 'Shield' law anyway, and the “blogger is/blogger isn't” a journalist question is not relevant to the case. The real question is can a person be forced to testify before a grand jury even in the absence of any realistic reason to believe that person knows anything about the situation the grand jury is investigating. The answer would appear to be “YES!”
How about the rest of us?
Does this concern only those who video tape things of potential interest to zealous policemen (or over zealous witch hunters, depending on your point of view)? Perhaps so at this point in time. It is abundantly clear that coerced eyewitness accounts are not likely to yield much without other backup. Recent experience tells us it is possible to be Attorney General of the United States and a nearly complete amnesiac at the same time.
However; the principle apparently upheld by the Josh Wolf case is this; It is not up to the authorities to show that you know something relevant to their investigation, it is up to you to prove that you do not. And that, my friend, is one terribly dangerous principle.
Why? Because it can be used to justify all sorts of actions by the authorities! Hypnosis, truth serums, or sensory deprivation are just a few of the more mild things that might be justified under that principle. Josh carried a video camera, but we all carry a full sensory recorder in our heads.
Anyone anywhere in the vicinity of any situation of interest to the authorities might well have pertinent, even important, information in their heads and so, under the principle of “prove you don't know”, could be 'justifiably' subject to any procedure that might be expected to pull stored (consciously or unconsciously) information from their heads.
In essence, accepting what was done to Josh Wolf as legal (all questions of whether he is a journalist or not, aside) is to accept the principles of any police state, namely; “When the authorities do it, it is legal.”
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