Eugene Volokh has a nice post puncturing the myth of "lost press freedoms" since 9/11.
The particular case at issue concerns Josh Wolf, a video blogger who refuses to cooperate with police by giving them an unedited copy of his video for use in a police investigation.
Wolf videotaped a July 2005 demonstration in San Francisco protesting a meeting of the G8 economic summit. The local district attorney wanted the unedited footage to assist a police investigation into violence which marked that night. The 24-year-old refused to turn over the full video to a grand jury.
But this isn't a "loss of press freedom," as Volokh points out.
Recall that all citizens must generally testify before grand juries -- or turn over tangible evidence to grand juries -- if they know things relevant to a criminal investigation. In 1972, 29 years before 9/11, the Court faced a journalist's claim that journalists have a First Amendment exemption from this duty, and rejected it. The Court left open room for some limited First Amendment protection for journalists, but quite limited; and since then journalists have repeatedly been required to testify before grand juries. And this is so even as to confidential communications to journalists, where journalists can most plausibly claim an analogy to the several narrow exceptions to the duty to testify (for instance, attorneys', psychotherapists', and clergy's right not to testify about confidential communications by their clients or parishioners).
It's hard to see how Wolf's case symbolizes "the loss of press freedoms in post-September 11 America." First, the rejection of the First Amendment arguments he makes long predates September 11. Second, to my knowledge there was never a time when the press had an established freedom not to testify, especially as to facts they observed in a public place. Third, even if "press freedom" should include the right to gather confidential information without the risk that one will be required to testify about it, I don't see a persuasive argument for why "press freedom" includes the right not to turn over publicly gathered video footage of a public demonstration.
The current hysteria about "loss of freedoms in a post 9/11 America" loses yet again. Still waiting for that definitive example.
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