The Latest On Reporters and Subpoenas

Despite some good news, it has hardly been a banner week for journalism.

The last couple days sure have been uncomfortable for some reporters who are trying to keep their sources secret, and stay out of jail.

Actually, it’s been pretty damn uncomfortable in general for one reporter who wasn’t able to stay out of jail, and has been languishing there, without the fanfare accorded Judy Miller, for over five months.

Back in August, we weighed in on the case of Josh Wolf, who writes and posts video on his own site as well for Indymedia, a Bay Area political site, who was jailed for refusing to testify before a grand jury investigating allegations that crimes were committed at a 2005 G-8 Summit protest in San Francisco — alleged crimes of which he may or may not have video footage.

On Tuesday, Wolf assumed a dubious place in the history of American journalism, becoming the longest-jailed journalist who refused to comply with a subpoena. Tuesday marked the 169th day that the 24-year-old Wolf spent in a California federal prison cell, and from the looks of things, he isn’t going to see the light of day any time soon. Just last week, Judge William Alsup refused Wolf’s motion for release, and according to, “Wolf’s lawyers had argued he might as well go free because he’ll never comply with the subpoena no matter how long he’s jailed; Alsup’s one-paragraph order said Wolf’s lawyers’ talk of a possible compromise ‘reveals a realistic possibility that Mr. Wolf’s confinement may be having its coercive effect.’”

And that, essentially, is where the case stands. Wolf continues to languish in prison, while the judge appears to think that keeping him there will eventually break him.

In another story about a reporter tangled up in a court case, the New York Sun ran a story this morning reporting that the New York Times “is declining a federal judge’s request that one of its reporters appear in court today to explain how he got front-page scoops about the internal communications of a pharmaceutical company.”

The reporter, Alex Berenson, had been asked by the judge in Brooklyn to “voluntarily” testify about how he had obtained the documents, which, according to the Sun, “reportedly discuss health risks connected to the Eli Lilly drug Zyprexa. In the invitation to Mr. Berenson, Judge Weinstein suggests that the reporter engaged in ‘a conspiracy to obtain and publish’ the Zyprexa documents.”

If Berenson continues to refuse to testify, the judge could order him to appear in court, or lift his protective order. In other words, the case is far from over.

In somewhat better news for the right of reporters to keep their sources to themselves, the St. Louis Post-Dispatch reports today that in the case of the New York Post reporter who interviewed Michael J. Devlin, who faces kidnapping and other charges in St. Louis for abducting and holding two teenage boys in his apartment, “A Franklin County judge rejected requests from Michael J. Devlin’s lawyers to place a gag order on the New York Post and force a freelance writer hired by the paper to turn over her notes.” Devlin’s attorneys also asked to ban the Post and other media outlets from using parts of the interview in future stories — a request the judge denied.

A pretty mixed bag, that. While we applaud the judge in St. Louis for understanding that there would be little gain in opening a reporter’s notebook from an interview that has already been published, and refusing to ban the further dissemination of the material in that published article, any joy we may feel is more than tempered knowing that Josh Wolf will be spending night 170 in jail for refusing to hand over material he gathered while reporting a story. The press, whatever else it may or may not be, is not an investigative arm of the government, and to ask reporters to assist in prosecutions by handing over sources or source material, is not, and should never be, part of the job description.

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Paul McLeary is senior editor of Defense Technology International magazine, and is a former CJR staffer.