BOB GARFIELD:
An unfortunate record was set last week when Josh Wolf became the journalist to spend the longest amount of time in an American prison for refusing to hand materials over to prosecutors. Lawyer Martin Garbus is representing Josh Wolf, and he joins me now. Martin, welcome to On the Media.
MARTIN GARBUS:
Thank you. It's a pleasure to be here.
BOB GARFIELD:
Six months is a long time to spend in jail. What exactly did Josh Wolf do to get himself there?
MARTIN GARBUS:
He was taking video pictures at a demonstration in September 2005. It was a demonstration against a G8 meeting which was then going on in Europe. At the demonstration, there were two fights, and allegedly a police car was damaged. After he took the videos, a local station wanted some of it from him. He gave some of it to the local station. Some of it he put up on his website. There's a chunk that he didn't put up on the website and didn't give to the local station. That's what the federal government wants, and they want not only the video but they want him to testify in a grand jury as to who are the people in the video and who are the other people at the demonstration.

Now, the subpoena is not the normal subpoena that comes out of the California federal court. It's a subpoena signed by the Joint Terrorism Task Force, which operates out of Washington.
BOB GARFIELD:
And Wolf has refused to turn this material over, for what reason?
MARTIN GARBUS:
He believes that he's a journalist, and as a journalist he should not be compelled to become an arm of the state. Now, the video has nothing, nothing on it that relates either to the two beatings or to the cop car. And we've told that to the judge in court, and we have told the judge that he can look at the video and he will determine that it has nothing to do with the subpoenaed material.

But what they're trying to do is to get a reporter to describe who was at a demonstration. Many of the people at the demonstration were masked. A lot of the people spoke to him and they took their masks off and, so far as I know, they're not on any other video.

Now, is there a signed confidentiality agreement? Absolutely not. Did these people assume that if the FBI or the Joint Terrorism Task Force saw the video from Josh Wolf that he would turn it over? Absolutely not.
BOB GARFIELD:
Now, this would not have happened if he had been in state court because California has a shield law that explicitly protects reporters from exactly this kind of inquiry. So how did it wind up in federal court to begin with?
MARTIN GARBUS:
Well, their claim is that it's in federal court because federal government property was damaged, i.e., a taillight to a police car. Clearly, the beatings, the two fightings are in the state court and also, traditionally, if you have damage to a car and you have other prosecutions in the state court, you would have it all in the state court.

So what they're really doing, I think, and since it's coming from the Joint Terrorism Task Force, is this is a way of getting information similar to databases and NSA surveillance about the Bush enemies or people who are opposed to Iraq. There were those kinds of signs, as well as anti-G8 signs. And the ACLU has joined us and submitted a brief arguing precisely that.
BOB GARFIELD:
You've just written a book about the Supreme Court with the Bush appointees. I gather you think that the Josh Wolf case bodes ominously for the kind of decisions that this court will be handing down.
MARTIN GARBUS:
Yes. I think the Roberts/Alito Supreme Court will even further narrow the rights that journalists have. When they do the balancing as to whether or not you should strip a privilege because of the weight of the crime, I think they're going to balance it very, very badly against journalists.

I think also when it comes to putting somebody in jail, they're going to view very badly towards journalists. Thirdly, the whole question of a blogger -I think they will not at this time find bloggers, internet people, etc., who are journalists to be journalists.

And fourthly, I think they find that if you have a political bias, then that makes you lose your journalist privilege. They won't with someone from The New York Times or The San Francisco Chronicle, but they'll find it with somebody like Josh who's only a blogger.
BOB GARFIELD:
Martin Garbus is representing Josh Wolf. Garbus' new book is titled The Next 25 Years: The New Supreme Court and What it Means for Americans. Martin, thank you very much for joining us.
MARTIN GARBUS:
Thank you very much.