He's going back to prison after a failed appeal attempt freed him for three weeks. He hasn't been charged with a crime, just civil contempt—he refused a grand-jury subpoena to hand over footage he'd shot during a rowdy protest in San Francisco more than a year ago. Authorities think the unaired portions of the video contain evidence of criminal activity. Josh insists they don't and says that as a journalist, he shouldn't have to give them up. This belief could cost him the next 18 months, the maximum sentence allowed by a 1970 federal law. His case is Joshua Wolf v. The United States 06-16403. Josh stands 5 feet 6 inches and weighs 140 pounds. It seems a mismatch.
*****
The night before Josh would turn himself in, I arrive in San Francisco later than planned. The United flight out of McCarran International was delayed two hours with a glitch the pilot referred to as "just screws that need tightening." At this point, Josh has no idea I'm coming. I haven't seen him in a year, and he's changed his phone number since then. He's supposed to be in prison already but got a 48-hour extension to get his affairs in order. I plan to catch him at a benefit thrown by his supporters to raise legal fees. The money raised will be added to $30,000 the Northern California chapter of the Society of Professional Journalists gave for his defense when they named him Journalist of the Year, even though he's never had a full-time job in news.
Then again, until a little while ago, I had no idea I was coming. This is a last-minute self-assignment. So I'm drilling into the illuminated San Francisco skyline in the rented minivan I figure I'll have to sleep in. My girlfriend's on the phone, reading me directions off of Mapquest. All I have is an address Wolf posted on his blog: a downtown bar called Crash.
He has about 16 hours before a 1 p.m. deadline to turn himself in.
I met Josh last year while working on a television pilot for HBO called The Pitch Room, in which documentary filmmakers asked HBO to fund their dream projects, the kind of projects network TV wouldn't air. I was a production assistant; Josh was scheduled to appear on the show. Most of the project ideas were bizarre. One tattooed woman wanted to follow around Thai women who shoot ping-pong balls out of their anatomical lily flowers. Another was about rich death-defiers who cryogenically freeze their heads after death, like baseball legend Ted Williams. Ultimately, HBO passed on the show.
The producers cut Josh out because his idea, about schools recovering in Hurricane Katrina's wake, was too similar to one Spike Lee was about to make. They didn't need two films about one of the worst natural disasters in American history, they said. Josh didn't seem to care that he didn't make it. He didn't want to work for Time Warner, anyway. After a brief wrap party, Josh suggested we go to a nearby bar owned by a friend named Schlomo. We drank microbrews and smoked cigarettes, illegally, all night.
Somewhere in the haze, as the smoke from Josh's all-natural cigarettes bonded with my Camel Lights, we decided to work on our own project—screw HBO—and the idea says a lot about Josh's idealistic attitude about journalism. We would give inner-city Oakland school kids their own digital cameras and challenge them to capture their world like no outsider could. We would document the process. Josh said he believed anyone could be a journalist—anyone who records their world and passes on the information in a responsible way: the local barber, the nosy neighbor, bloggers and New York Times reporters.
Not long after that night, I wound up in Las Vegas and Josh found work at a community college public-access station in San Francisco. On his own time, he shot video of stuff happening in the city, sometimes selling it to local TV stations. The Oakland idea went nowhere, of course, but a year later, that same vision of uncompromising citizen journalism landed him in prison.
*****
I find my way to Crash and realize street parking is hopeless. I resign my minivan to a $15 lot that locks its doors at midnight. Inside, the bar is alive with flashing colored lights. Idealists and anarchists of all shapes, ages and races fill the floor with an earthy aroma. Josh stands next to an attractive Asian girl with a Corona in his hand. Everyone steals glances at him. I nudge closer. A local firebrand county supervisor named Chris Daly spits rhetoric, punctuated by the occasional F-bomb. "It's a fucked-up situation," Daly says, "that our rights are being stripped by this administration." A bystander clues me in. "He throws these fits at the meetings all the time. He's awesome."
After the speeches, I tap Josh on the shoulder. He looks puzzled. At last, my face registers in his memory banks. We shake hands, but he is soon swept away. Everyone wants to congratulate him. To tell him what a brave thing he's doing. Occasionally he glances my way, saying without words, I'm glad to see you, but I have to take care of these people first. He talks to everyone, even bedraggled paranoids and drunks. Some of them don't even know who he is. He gives a haggard, dreadlocked bum poet five bucks for a leaflet."You need this more than I do," he says. "I don't need money where I'm going."
A drunk girl stumbles up to him.
"Are you straight?" she asks.
Yes.
"Will you marry me?"
It says something about the surreal whirlwind Josh is living in that he appears to consider it for a moment.
He finally gets a moment to speak with me, but there's no avoiding interruptions. A young reporter with braces on his teeth says he's from San Francisco State University's school paper. He tries to play fly on the wall. I tell him to scram. He does. "My friend Derek came all the way here from Las Vegas to write a story, the least I can do is give him some time," he says to others who approach. I'm glad he called me his friend; I fear he might think I'm cashing in on his newfound notoriety, even though both might be true—at this point, I'm not sure myself what's motivating me.
I tell him I want to see the video that started this whole mess. He says it's at his house.
"I don't know if this is the right time to ask me that, Derek," he says. "I haven't eaten all day, and I've already had five beers." I ask him if he wants another beer.
He's now 14 hours from prison.
*****
July 2005. A San Francisco street protest against the G8 summit in Scotland quickly devolved into a riot. In the midst of the melee, Josh stared down anyone and everyone with his digital camera. He posted some edited footage on Joshwolf.net. Local broadcasters downloaded the footage and splashed it on the evening news. Josh saw his footage on TV and sent them a bill for it. They paid. The version of the video that aired begins in the daytime, with protesters carrying inflammatory anti-capitalist signs. The mood darkens as nightfall approaches. Angry demonstrators drag newsstands and whatever random debris they can find and throw it into traffic. Some of the protesters look like insurgents, with hoods up and bandannas covering their faces. The picture is dark and it's hard to see anyone clearly. Rioters tag a bus advertisement featuring scantily clad models with the words "This isn't beauty." They paint anarchy symbols on everything and splatter red paint on the Pacific Gas and Electric office. Soon, large riot squad troopers tromp by in their heavy boots, wearing helmets and brandishing large beating sticks. Josh is nearly bowled over.
A quick edit and the video jumps to an officer cinching a Gorilla Monsoon headlock on a suspected rioter. Other rioters taunt the officer for several minutes as he tightens his grip. They get within inches of him. Suddenly, three more officers appear on the scene. The laser sight on one officer's pistol dances menacingly from target to target as the taunters back off. The final moments of the video show that the black, shadowy figures of the police have regained control of the streets. An officer shoves one last protester and screams, "Leave or you're going to be fucking blasted. I'm a Fed, motherfucker." Neither police nor rioters come off looking good in the video, both caught up in the fury of the moment.
But the government thinks there was more to the video before Josh edited it. They think he skipped parts that might make the rioters look like less than victims. (A police officer was clobbered in the head during the skirmish, but that's a local crime, beyond the scope of a federal investigation.) In particular, they believe he might have captured the attempted arson of a police car, a crime the government has ramped up to federal status since the San Francisco police receive terrorism money.
Josh says that while he was filming the aggressive arrest, someone set off fireworks on a piece of foam debris thrown underneath a police cruiser. The car wasn't set on fire, but someone did break one of its tail lights. According to the police, the rioters intended to set the cruiser ablaze. Josh says it would be impossible for him to have caught the attempted arson because it happened as he was clearly filming the arrest. "The funny thing is," he says, "there's nothing more on the video."
We're standing in a darkened stairwell outside a post-benefit get-together. I shoot him an incredulous glance. I'm not sure what to believe at this point. If it's not on the video, then I want to see it.
"Why don't you just give it up then?" I say.
"Because I don't do surveillance for the government," he says. "If that's what I wanted, I would have pursued a career in spying, but I pursued a career in journalism." It's a journalist's job to tell the stories, not collect evidence, Josh says. The government pays its own people for that.
I hear footsteps coming up the stairs.
"Derek, I'm sorry about this," Josh says. "I know I promised to show you the video. I feel like a dick, but you're my age and you have no more clout in journalism than I do."
A woman clomps up. She's falling all over the place and slurring about someone giving her ecstasy pills. She lies at our feet and stares up at us.
"Get out of here," I tell her. "You're making us uncomfortable."
Josh looks at her. "You're not making me uncomfortable," he says. He turns to me. "If you worked for The New York Times, that would be different," he says. In fact, Josh says, he offered to screen the outtakes to The New York Times. They declined. It opens its reporters up to too much liability. They're passing on more Judith Miller debacles at this time. He also offered to screen the outtakes for a judge as a compromise for not handing it over. The U.S. attorneys declined.
"Besides," Josh adds, "if I show you the video, you'll be subpoenaed, too. Then you'll be sitting your ass right next to mine in prison."
In a moment of exhausted grandiosity, I tell him I'm ready to go to prison. I would be thrown in federal prison for watching a video. "That's just more proof of how fucked up it is," I say.
He pauses and appears to be considering my request.
"If I do show it to you," Josh says, "It has to be completely off the record."
He's now 12 hours from prison.
*****
I wake up at 8:30 the next morning, surrounded by empty beer bottles. I'm lying on possibly the hardest, mustiest futon in the world. Josh's apartment on Haight Street is littered with garbage. He apologizes.
"I was in prison for all of August, and it was like this when I got back," he says. "I figured I'd only be out for a couple weeks, so it's not like I want to clean."
Josh already spent a month in Dublin. He entered August 1 and was released September 1, while his appeal was pending with the Ninth Circuit Court of Appeals. It was denied by a three-judge panel. He found out September 18, a day known to elementary schools across the country as Constitution Day, that he was going back.
The morning he would turn himself in, The San Francisco Chronicle had a front page story about two of its reporters placed on house arrest. They had received leaked confidential documents from the grand jury investigation on steroid use in baseball and refused to give it up. (They turned their reporting into the best-selling book Game of Shadows.) The story said 50 journalists from the Bay area showed up to support the two reporters. I wonder what the turnout for Josh will be.
"Can you believe that?" Josh says, tossing away the newspaper. "I'm going to prison and the Chronicle reporters get house arrest." I had forgotten for a moment that Josh was even going to prison—four-and-a-half hours from now. He's already been up long enough to shower and looks fully awake. With his black hair pushed into a faux hawk, black-framed glasses, a button-up striped shirt and jeans, he looks like he's ready to go to class or something.
Josh is livid about the Chronicle reporters being put on house arrest. He calls his lawyer. No answer. We get ready to leave. White sunlight pours through the open door. Both of us look tiny in his hallway. It's four feet wide and 15 feet high. He calls his mom, a grade-school teacher in Southern California. He explains one more time why exactly it is that he's going to federal prison. She agrees to update his blog while he's in prison.
Josh's dad pokes out of a creaking bedroom door. He's a fat, disheveled man with long gray hair. He wishes Josh good luck. One last thing before I escort Josh to jail, minivan style. He removes the hard drive from his Apple G5 tower. It contains the wanted video. I go brush my teeth. Near the toilet sits a copy of a Videographer magazine. On its cover, Spike Lee points a cameraman toward a group of forlorn Katrina refugees.
As we're walking to the rented minivan, Josh remembers his first run-in with authority. It was in preschool, he says. "We were fingerpainting when this kid Jacob said ‘Fuck you' to me," he says. "So I stood up and told the teacher. I said ‘Jacob just said "Fuck you" to me.' ‘Josh, that's a terrible word,' she said. ‘You never say that word.' So I said, ‘But Jacob said "fuck you" to me. I'm not saying "fuck you." That's what he said to me.' I had to stay in for recess for two weeks. That was the first time I was incarcerated for arguing with authority."
*****
Two hours now.
We're not rolling to federal prison alone. We're on our way to pick up some support. I'm not familiar with the streets, so Josh has to give me step-by-step directions. He gets a call on his cell phone and talks while I try not to get into an accident. "Well, thanks, Judy," he says. "I really appreciate your support. I'll talk to you soon, Judy." He hangs up. "Judith Miller just called," he says, "I called her Judy. That's hilarious."
We pick up Josh's friends Andy and Julian and filmmaker Kevin Epps. I recognize them from last night's benefit. Andy does viral marketing. He spans the city, putting up stickers of a devilish-looking George W., with the words "Impeach" or "Fascist" on them. I'm not quite sure why. Julian works at city hall with foul-mouthed County Supervisor Chris Daly. He plans to run for office himself some day. In his militant camo hat, Kevin Epps looks like a gangsta rapper. He totes a digital video recorder. Epps is an award-winning filmmaker. He was once subpoenaed to give up footage from his documentary Straight Outta Hunters Point. Epps is filming Josh's return to prison for Al Gore's Current TV. I have never met anyone in Las Vegas that has seen or knows of Current TV, but it's very well-known among budding documentarians. It's a cable channel of entirely viewer generated content. It precedes the YouTube craze, but still hasn't found its audience. It can only be found in the higher spectrum channels of some satellite and extended cable packages.
Forty-five minutes.
We take Josh's hard drive to his lawyer's office in downtown Oakland. Epps films the drop-off while Andy, Julian and I get Josh a last meal. It's at least 30 minutes to the prison, so we settle for stale doughnuts and warm orange juice from a corner bodega. Josh eats the doughnuts and then tells us he feels sick.
Ten minutes.
The tires crunch on a gravel parking lot in front of the prison. Aside from a few fat guys manning cameras set up on tripods, it's just us. No 50 journalists show up to back Josh, just a few ragtag friends the media doesn't even want to interview. Epps suggests we stand with Josh at the podium with a stereotypical bouquet of microphones.
"They can take put me in prison, but they can't silence me," Josh says. "I'll be continuing to update my blog, www.joshwolf.net, from prison. You can find out how to contact me from there. I just ask that you say in the letter whether you want to be in correspondence with me or just want to give support. The last time, I wrote people six page letters and they didn't bother to respond."
We hug Josh and promise to write letters. Machine-gun clicks from the print photographers make it feel fake. We smoke a last cigarette as Josh heads in, while the cameras lurk like vultures for that single, pure moment that would tell the story. "I remember when I was in school," Andy says as Josh, a speck in our vision from our perch behind the barbed-wire fence, walks into prison with his hands in his pockets. "Our teacher said the United States is the only country where journalists don't get put in jail. Man, this is really fucked up."
And I suppose that's why I'm here—because this isn't just a San Francisco story. Free speech is under assault everywhere, from the Patriot Act on down, and maybe The New York Times has the resources to defend itself, but what about loners like Josh, like a lot of people with stories to tell? To the government, they're just screws that need tightening.
I spend the next two days at Andy and Julian's apartment on 16th and Delores Streets. In between meditative conversations about Josh, I write most of this article. They have a study, lined with books, with a large window overlooking a garden. The night before an early-morning flight back to Las Vegas, I say goodbye.
"As terrible as it is that Josh is in prison," Julian says, "if there was one good thing that came of all this, it's that it brought all of us together."
Shortly after Josh went to prison, his attorney, Martin Garbus, released a statement basically giving away the secrets of the video Josh entrusted him with. The statement probably hurts Josh's case more than it helps.
Garbus said about 10 of the protesters de-masked to give Josh exclusive interviews. Until the lawyer's statement, government officials probably thought they would be lucky to get a clear shot of a masked protester throwing fireworks under a police car. Now knowing the video could lead to the identification of suspects gives them a much needed hook for their fishing expedition. The news doesn't bode well for Josh, who at the time of this story's publication will be spending his 67th day in prison. If his will holds out, and the government refuses to give up, he will be the longest jailed journalist in U.S. history. The current record holder, Vanessa Leggett, spent 168 days for refusing to give up confidential sources in a similar grand-jury investigation. However, prosecutors in Leggett's case thought her sources could potentially solve a homicide.
Wolf's sources, on the other hand, could potentially solve the mystery of an unlawful use of fireworks and a federally funded police cruiser's broken tail light.
On Sept. 29, Josh's lawyer posted this letter on his blog:
I am presently representing Josh Wolf, the jailed San Francisco blogger, who refused the Grand Jury subpoena to turn over pictures of a WTO demonstration.
Josh Wolf is being subpoenaed because the Anti-Terrorism Task Force believes he may have information about "anarchists" and other people who were at the demonstration. He's already stated, and you will see, that there's nothing in his tape in any way relating to the police car. The FBI and the government, having failed to be remarkably successful in going against Al Qaeda and related people, are now going after "terrorists" totally unrelated to the "September 11th problem." They are using the September 11th issues to throw a net over other people who would normally be out of the reach of any Grand Jury. That's why the Josh Wolf situation is so pernicious.
The difference between Judith Miller, the San Francisco Barry Bonds writers and Josh is apparent.
The Barry Bonds writers had Grand Jury information as a result of a leak.
Judith Miller had information potentially relevant to an ongoing federal investigation of a federal crime.
Unfortunately, the probabilities are that he will wind up being the longest-jailed journalist in America.
Best,
Marty