White Light Black Light

Josh Wolf, the videoblogger who became a 1st Amendment hero, was released last Tuesday after spending seven and a half months in a California federal prison for refusing to turn over video he shot of a 2005 protest. At the protest a cop was injured and a police car was allegedly set on fire. Federal prosecutors demanded Wolf turn over his tapes. He refused and was sent to prison, becoming a cause celeb for anarchists, bloggers and many mainstream reporters.

Wolf’s release came after he reached an agreement with prosecutors that stipulated the 24 year-old post the unedited video of the protest on his site, JoshWolf.net, give the government a copy and tell a judge he had not witnessed any crimes being committed. In turn, he was promised he would not be called to testify. When he walked out of the federal detention center in Dublin, Ca. he had served the longest prison term of any journalist in American history for refusing to cooperate with a government investigation. [Read more of GNN’s coverage of the case here].

But the deal and his subsequent release have not ended the controversy. Some are calling him a sell-out for reaching an agreement with the government with others saying the outcome only solidified his status of martyr for the digital age. And the debate still rages on the fundamental legal question his case raised: Is Wolf a journalist or an activist? Or should it even matter in the age of blogging?

In a recent telephone interview while still in federal prison with Yahoo’s Kevin Sites the veteran war correspondent asked Wolf, “If there had been a situation where you saw a protestor beating up a police officer, or you saw them committing arson, would you have shot that?” Wolf appeared to leave open the possibility that he might not shoot the incident, which would seem to give credence to his critics’ charge that he is, at heart, an activist and should not be afforded the protections of a journalist. In a recent blog, I wrote that while I’m a longtime supporter I found that the blogger’s answers to Sites’ questions seemed “weasely.” In response, Wolf sent me an explanatory email, which began a lengthy email discussion. The following is our email exchange verbatim, republished with permission by both parties:

Wolf: Hey Anthony, while I certainly see where you are coming from in regards to the Kevin Sites interview, it’s important to keep in mind that a prison is not exactly a natural environment to conduct an interview – especially when the interviews are supposed to be capped at 15 minutes (I think the admin let that interview with Kevin run about 5 minutes longer).

The question Kevin asked was a rather pointed question, and while I do stand by my answer: I’d have to make that decision at the moment; I think that some explanation as to why I made such a statement is needed. First off, in my four years of shooting protests I’ve never seen a protester just attack police in the way Kevin describes. I’ve seen protesters fight back on several occasions but every time I’ve witnessed an altercation the police have been the aggressor. It is my responsibility to cover my subject matter as accurately as I can and this means making the decision what to film and what not to film on a constant basis. I don’t make this decision around who is going to look good or bad, and I wasn’t thinking that way at the time that I filmed the G8 protest.

To you, my answer may have seemed weasely, but it is the honest truth. I can’t say that I would decide to film the police being attacked any more than I can say I would film this or that. It depends on what I was filming at the time and what effect would result if I filmed something else. The point of the matter is that I first became aware of the altercation with the other cop when I heard someone yell “officer down,” at which point I assessed the situation and concluded that I would not be able to approach that area and my camera was best suited to staying right where I was.

Lappe: Thanks for the response. He was asking you a hypothetical question which imo was pretty straight forward, and you appear to waffle and leave open the possibility that you wouldn’t shoot someone that is obviously newsworthy and important. Whether you’ve never seen that happen before is not really the issue. Your qualifications below are noted, but confuse the matter. He was obviously asking you in theory would you shoot it if you were in the right position to do it – in other words, it’s perfectly clear the intent of his question – he’s asking you if you’d let your political sympathies influence what you choose to film and you appear to say you don’t know, they might. If that’s not the case, then let’s set the record straight.

Let me rephrase his question for the record: If a protester attacked a cop unprovoked in front of you and you weren’t shooting at the time, would you turn on the camera and start rolling?

Glad you’re out. You fought the good fight. Anthony

Wolf: Thanks for the response Anthony, while in light of the back story of Kevin’s own experience filming the soldier shooting the Iraqi I would have answered the question in a more direct manner, I did not know these circumstances at the time of his interview with me. How realistic a hypothetical question is is actually quite relevant, but I see why you personally disagree. What appears obvious to you regarding me having the opportunity to film it was not to me. The other side to the question which may seem immaterial to you, but is not to me, and wasn’t at the time is what would I stop filming in order to film this hypothetical. If given the choice between possibly filming one thing that’s newsworthy and continuing to film something else that’s newsworthy, I could conceivably make either decision.

A far more sensible question is what I would do if I were to witness an unprovoked attack on a police officer while filming. The answer is that I would continue filming the entire altercation and would elect to publish the material as part of my reportage. It is somewhat likely that I would elect to blur out the protester’s identity as I do not feel it is my job as a journalist to aid and assist law enforcement in their investigation.

The fact of the matter is that I have never seen any attack, by protester or otherwise, that was truly unprovoked and I feel that the most important element to these sorts of situations in regards to newsworthiness is not who did what, but what led up to such an explosive situation in the first place.

Lappe: If you would cover up the hypothetical protester’s identity, what would you do if you were in Sites’ situation [he filmed a U.S. Marine shooting a wounded, apparently unarmed Iraqi insurgent in Fallujah]? Would you hide the Marine’s identity to shield him from potential military prosecution?

Wolf: I would not hide the U.S. Marine’s identity on the grounds that the U.S. Marine was acting as the United States; the public was, in essence, subsidizing the Iraqi’s murder. If he was not acting as a public servant then the matter would need to be assessed from a different perspective. It is not my belief that service men on-duty have any reasonable expectations of privacy whereas an independent individual does.

Lappe: One last follow up. Why does an individual who is taking part in a public demonstration on a street who attacks a cop have a reasonable expectation of privacy?

Wolf: They should not, by any means, have any expectation of complete privacy. After all, the police generally maintain their own surveillance and any localized security cameras would likely be subpoenaed by the prosecution without any difficulty, but, as a journalist, it is not my job to aid the government in their criminal investigations of private citizens.

Lappe: Last questions. I promise. It still seems to me you are acting as censor of information that you feel may harm people whose views you support. You appear to be making a decision on what you think is in the public’s right to know and what isn’t to protect your political allies – the very charge you and your lawyers argued so persuasively that you weren’t doing in court and in the media.

You said you’d black out the face (protect the identity) of a protester you filmed attacking a cop but you wouldn’t protect the identity of a Marine because he is an employee of the U.S. government. Would you protect the identity of an alleged bank robber or an alleged rapist you filmed in the act? They are private citizens. If not, why is a protester attacking a police officer different? Finally, if you were filming an anti-abortion rally that got violent would you protect the identity of the anti-abortion protesters?

Thanks very much for your candor and time.

Wolf: Your suggestion that it’s a distinction based on content and not context isn’t really accurate. I’ll admit the ethics that I have loosely settled on surrounding these series of hypotheticals is not without its flaws. The truth is that I’ve never previously contemplated these issues in such a manner and that few journalists face these issues very frequently.

From the SPJ code of ethics:

Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone’s privacy.

Be cautious about identifying juvenile suspects or victims of sex crimes.

Be judicious about naming criminal suspects before the formal filing of charges.

Balance a criminal suspect’s fair trial rights with the public’s right to be informed.

In answer to your most recent inquiries, I will start with the rape hypothetical. If I was somehow incidentally privy to a rape, then I could not in good conscience film such activity at all; although the footage would have evidential value in a criminal case, it would be far more important to do everything within my means to stop the rape from continuing. This is different from the attack on the police officer scenario as any attack is almost certainly be a single strike followed by brutal retaliation or a quick escape. Further, I could never knowingly cover a story that involved unprovoked violence against human life.

The bank robbery scenario is a bit more realistic. It is conceivable that one might want to report on a political group engaging in bank robberies (IE the SLA); if one were to do so and decide to film a bank robbery in progress (which I probably would never do as it would open myself up to a tremendous liability for conspiracy charges), I would need to make a prior agreement as to whether or not I would block out their faces and would hold myself to that agreement.

Finally, in regards to the anti-abortion activist attack, I would pixelate the activists’ faces. In reality though, this all becomes muddy around any issue involving violence against people. The simple answer to all of these questions is that I really don’t know what I’d do an the subtleties of the situation would probably help form and cement my views on these ethical issues. The reality is that all of us can say what we would do in such situations, but few of us will have to actually make such decisions.

Journalistic ethics is something important for all of us, both independent and established journalists, and I think we as a community and individuals really need to take some time to reflect upon such pressing issues. There are positive and negative approaches to any decision around journalistic ethics and I don’t have any real answers. My case has brought up a lot of these questions, and when I said what I did to Kevin, it was not an attempt to dodge the question. It was an honest response, and if the form of the question had asked whether I would have continued filming an attack on a police officer that was already rolling then my answer would have been a simple yes. What hung me up was what I’d stop filming to capture the hypothetical situation.

The issues are complicated and remind me of the dissenting opinion in Branzburg v. Hayes by Justice Douglas:

“Two principles which follow from this understanding of the First Amendment are at stake here. One is that the people, the ultimate governors, must have absolute freedom of, and therefore privacy of, their individual opinions and beliefs regardless of how suspect or strange they may appear to others. Ancillary to that principle is the conclusion that an individual must also have absolute privacy over whatever information he may generate in the course of testing his opinions and beliefs. In this regard, Caldwell’s status as a reporter is less relevant than is his status as a student who affirmatively pursued empirical research to enlarge his own intellectual viewpoint. *[p715]* The second principle is that effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and reexamination. In this respect, Caldwell’s status as a news gatherer and an integral part of that process becomes critical.”

We need an open and extended public conversation about journalistic ethics, “a steady, robust, unimpeded, and uncensored flow of opinion and reporting” about these issues. I created Free the Media (www.mediafreedoms.net) as a space to possibly have such a conversation and will be posting a forum on this issue within the next twenty-four hours.

Posted by anthony Anthony Lappé is GNN's Executive Editor. He's written for The New York Times, Details, New York, Paper, The Fader and Vice, among many others. He has worked as a producer for MTV and Fuse. He is the co-author of GNN's True Lies and the producer of their Iraq doc,...

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