INTRODUCTION

Joshua Wolf, a freelance video journalist, remains incarcerated although no court has actually reviewed the unpublished videotape that is the subject of a federal grand jury subpoena to determine its relevance to the grand jury’s investigation. Wolf now seeks rehearing en banc of the motions panel’s September 8, 2006, decision denying his recalcitrant witness appeal.

En banc review is warranted pursuant to Federal Rules of Appellate Procedure 35(b)(1)(A) and (B), for several reasons. The panel’s decision conflicts with Supreme Court decisions, previous decisions of this Court, and decisions of other United States Courts of Appeals on two independent issues. First, the panel’s rejection of a news gatherer’s privilege pursuant to Federal Rule of Evidence 501 is inconsistent with Jaffe v. Redmond, 518 U.S. 1 (1996). Second, the panel’s requirement that Wolf prove that the grand jury was operating in bad faith in order to avail himself of a the qualified constitutional privilege recognized by this court is inconsistent with the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and this Court’s decisions in In re grand Jury Proceedings (Scarce), 5 F.3d 397 (9^th Cir. 1993), and In re Lewis, 517 F.2d 236 (9^th Cir. 1975), as well as rulings of the Third Circuit. The issue of the common law and constitutional protections due a newsgatherer whose unpublished information is sought by a federal grand jury is an issue of exceptional importance and relevance given the marked in increase in such subpoenas in recent years^[1] and the uncertainty in the law. As a newsgatherer may be subject to a federal grand jury subpoena in any jurisdiction throughout the country, the lack of uniformity on this issue preserves the chilling effect on newsgathering and reporting that the privileges were designed to prevent. See Circuit Rule 35-1.

STATEMENT OF FACTS

In early 2006, freelance video journalist Joshua Wolf was served with a subpoenas from a federal grand jury seeking, among other things, his video recording of certain protest activities in San Francisco on July 8, 2005, between the hours of 6:30 p.m. and 11:59 p.m. [EOR 4, 82-86] The sole subject of the grand jury’s investigation is the “attempted arson of a police car.” [EOR 49-50, 110-111] The grand jury seeks the video tape so that it can be analyzed by an investigator to identify the individuals present. [EOR 89:24]

Wolf had been present at the protest and recorded video for the purposes of news reporting. Edited portions of that video were broadcast by several local television stations and published on Wolf’s own website as well as elsewhere on the Internet. [EOR 98-99] Wolf testified and offered the unpublished video for in camera review^[2] as proof that the alleged arson was not depicted in the unpublished video. [EOR 99, 141, 144-145]

Wolf has refused to comply with the grand jury subpoena based on his First and Fifth Amendment rights, explaining that compliance will damage his relationship with the protest groups that he covers as a freelance journalist and significantly interfere with his ability to gather and disseminate news regarding them. [EOR 99:17-100:2; 107:17‑23; 108:11‑19; 109:24‑25]

On August 1, 2006, the district court found Wolf in contempt [EOR 164]. A panel of this Court affirmed the contempt order by memorandum dated September 5, 2006.

I.                  THE ISSUE OF THE LEGAL PROTECTIONS DUE A NEWSGATHERER AGAINST A SUBPOENA SEEKING UNPUBLISHED INFORMATION IS ONE OF EXCEPTIONAL IMPORTANCE.

At issue in this appeal is the right of a reporter to conduct legal newsgathering activities without fear of being later turned into an instrument of governmental surveillance. This Court has previously recognized the compelling public benefit of providing newsgatherers with at least a qualified privilege in such situations. See Shoen v. Shoen, 5 F.3d 1289, 1292 (9^th Cir. 1993) (Shoen I). Indeed, there is a strong consensus across the country by state legislatures and courts, and by federal courts outside of the grand jury context, that reporters enjoy at least a qualified privileged not to reveal their unpublished information. However, the possibility that no privilege will apply in one particular setting, the federal grand jury, preserves the precise chilling effect on newsgathering that these privileges were intended to eradicate. Given that the issuance of grand jury subpoenas is increasing in this and other circuits, the trial courts need uniform guidance on the precise contours of the rights of newsgatherers to protect their unpublished information from disclosure.

II.               THE PANEL’S DECISION ON THE RULE 501 ISSUE IS OF EXCEPTIONAL IMPORTANCE AND IS IN CONFLICT WITH THE SUPREME COURT’S RULING IN JAFFE V. REDMOND, AND THE THIRD CIRCUIT’S RULING ON THE SAME ISSUE.

This case provides this Court with its first opportunity since Jaffe v. Redmond, 518 U.S. 1 (1996), to revisit the question of whether there is a qualified newsgathers’ privilege pursuant to Federal Rule of Evidence 501. In Jaffe, the Supreme Court interpreted Rule 501 as establishing a continuously evolving system of testimonial privileges. Id. at 8-9. The Supreme Court emphasized that Rule 501 “did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history.” Id. at 9. The Supreme Court thus disapproved of a less flexible approach to recognizing new privileges.

The Ninth Circuit last considered the existence of a newsgatherer’s privilege under Rule 501 in In re Grand Jury Proceedings (Scarce), 5 F.3d 397, 402‑03 (1993), three years before the Supreme Court’s decision in Jaffe. In rejecting the existence of a privilege in Scarce, 5 F.3d at 402-03, this Court employed the rigid approach the Supreme Court rejected in Jaffe. Compare Jaffe, 518 U.S. at 8-9 with Scarce, 5 F.3d at 402-03.

This Court must thus reconsider its rejection of a newsgatherer’s privilege in light of the Supreme Court’s intervening decision in Jaffe. The panel declined to do so.

A.          A REHEARING EN BANC IS TYPICALLY REQUIRED WHEN A PARTY SEEKS TO OVERTURN ONE OF THIS COURT’S PRIOR DECISIONS.

A rehearing en banc is especially appropriate in this case because the court is being asked to overturn its holding in Scarce. Because a “three-judge panel cannot disregard prior circuit precedent,” the Ninth Circuit’s long-standing practice requires en banc review to overrule one of its prior decisions. Kevala v. Gonzales, 434 F.3d 1120, 1126 (9^th Cir. 2006) (citing Miller v. Gammie, 335 F.3d 889, 899-900 (9^th Cir. 2003) (en banc); United States v. Mandel, 914 F.2d 1215, 1221 (9^th Cir. 1990). Although a three-judge panel has some flexibility when an intervening Supreme Court decision is irreconcilable with the challenged decision, Miller v. Gammie, 335 F.3d at 893, a preference remains for en banc review.

B.          EN BANC REVIEW IS NECESSARY BECAUSE THE PANEL’S DECISION IS INCONSISTENT WITH THE SUPREME COURT’S DECISION IN JAFFE.

1.     THIS COURT’S OPINION IN SCARCE, UPON WHICH THE PANEL RELIED, IS INCONSISTENT WITH THE SUPREME COURT’S RECOGNITION OF EVOLVING PRIVILEGES.

In Jaffe, the Supreme Court interpreted Rule 501 as creating a continuously evolving system of new testimonial privileges. The Court established a methodology for determining whether a common law privilege has evolved over recent history. Three factors are considered: (1) whether the proposed privilege serves important public and private interests, Jaffe, 518 U.S. at 11; (2) whether there is a sufficient and likely evidentiary benefit that would result from the denial of the privilege, Id. at 11‑12; and (3) whether “some form” of the proposed privilege is widely recognized by the states, either through judicial or legislative acts. Id. at 12‑14 & n.13.

Rather than reconsider the existence of the privilege in light of Jaffe,^[3] the panel relied solely on this Court’s previous disposition of the issue in Scarce; the panel did not discuss Jaffe at all. Memorandum at 5.

However, Scarce, and thus the panel’s decision, are clearly inconsistent with Jaffe. The Scarce court, in conflict with Jaffe, specifically rejected the idea that Rule 501 empowered courts to consider the evolution of the legal landscape: “We discern nothing in the text of Rule 501, however, that sanctions the creation of privileges by federal courts in contradiction of the Supreme Court’s mandate.” Id. at 403 & n.3 (citing Branzburg v. Hayes, 408 U.S. 665 (1972)).^[4]  Instead, the Scarce court, 5 F.3d at 402-03, treated the law as if it is “frozen at a particular point in our history,” namely 1972, when the Supreme Court decided Branzburg. The panel as a result treated the newsgatherer’s privilege as a privilege that could never evolve.

2.     APPLYING JAFFE, THIS COURT SHOULD FIND THAT A QUALIFIED NEWSGATHERER’S PRIVILEGE APPLIES.

When the Jaffe methodology is employed, some form of the newsperson’s privilege must be recognized.^[5]

a.          THE PROPOSED NEWSPERSON’S PRIVILEGE SERVES IMPORTANT PRIVATE AND PUBLIC INTERESTS.

The first inquiry of the Jaffe analysis examines the important private and public interests served by the proposed privilege. That a free press is an essential part of our democracy, and that protections of the newsgathering process thus further our democracy, is certainly beyond challenge. Mills v. Alabama, 384 U.S. 214, 219 (1966); Estes v. Texas, 381 U.S. 532, 539 (1965). With respect to the particular free press concerns at issue in this case, this Court has already recognized that “the compelled disclosure of nonconfidential information harms the press’ ability to gather information . . . by converting the press in the public’s mind into an investigative arm of prosecutors and the courts.” Shoen I, 5 F.3d at 1292. This Court continued:

It is their independent status that often enables reporters to gain access, without a pledge of confidentiality, to meetings or places where a policeman or a politician would not be welcome. . . . If perceived as an adjunct of the police or of the courts, journalists might well be shunned by persons who might otherwise give them information without a promise of confidentiality, barred from meetings which they would otherwise be free to attend and to describe, or even physically harassed if, for example, observed taking notes or photographs at a public rally.

Id.

These concerns are made manifest in the present case. As the record reflects, Wolf’s compliance with the subpoena would severely impair his access to activist groups and damage his ability to gather and disseminate news about their activities. [EOPR 99-100]  The federal government has given Wolf three untenable choices: either become an investigative arm of the police, stop collecting information to disseminate to the public, or go to jail.

b.          THERE WOULD BE LITTLE EVIDENTIARY BENEFIT FROM THE DENIAL OF THE PRIVILEGE.

This Court has previously recognized that significant interests outweigh the evidentiary benefit that would result from denial of the privilege. See Jaffe, 518 U.S. at 11-12. “To the extent that compelled disclosure [of journalists’ unpublished information] becomes commonplace, it seems likely indeed that internal policies of destruction of materials may be devised and choices as to subject matter made, which could be keyed to avoiding disclosure requests or compliance therewith rather than to the basic function of providing news and comment.” Shoen I, 5 F.3d at 1295. Accord Gonzales v. National Broadcasting Co., 194 F.3d 29, 35 n.5 (2d Cir. 1999). This reasoning is as equally applicable to the grand jury context as it was to the civil context in Shoen I. See United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) (applying privilege to all unpublished information sought in a criminal case). Moreover, reporters’ access to sources and ability to record events will diminish if they are transformed into an investigative arm of the state; the end result will be less information available to the grand jury. Indeed, the grand jury here would not have had the benefit of Wolf’s published video if the protestors had not, out of trust, given him unfettered access to film the protest.

c.          THE STATES HAVE ALMOST UNANIMOUSLY RECOGNIZED THE EXISTENCE OF A PRIVILEGE.

The most striking parallel between this case and Jaffe is the near unanimity of the states in adopting some form of the privilege. In Jaffe, the Court held that the fact that all 50 states had recognized the psychotherapist-patient privilege in some form strongly supported the recognition of a common law privilege. Jaffe, 518 U.S. at 12-13.

The newsgatherer’s privilege shows a comparable unanimity. Forty-nine states and the District of Columbia offer at least qualified protection to a journalist’s work product. See In re Miller, 397 F.3d at 993. This protection is not limited to confidential information. California and 29 other states extend at least qualified protection to non-confidential information.^[6] The privilege is also extended to freelance journalists, such as Wolf. See, e.g., People v. Von Villas, 10 Cal. App. 4th 201, 231 (1992) (extending protection of California Shield Law to freelance journalists). The Department of Justice’s own guidelines recognize the importance of offering journalists some level of protection. 28 C.F.R.§50.10.

This level of consensus among the states is far greater than what this Court has previously required under Jaffe. This Court has found uniformity in state laws to be particularly instructive; but it has recognized a common law privilege even in the absence of such uniformity. See Chase, 340 F.3d at 985-89; Oleszko, 243 F.3d at 1158-59.

Jaffe does not require that the states’ formulation of the privilege be identical. Rather, “variations in the scope of the protection are too limited to undermine the force of the States’ unanimous judgment that some form of . . . privilege is appropriate.” 518 U.S. at 14 n.13.

C.          AN EN BANC DECISION ON THE RULE 501 ISSUE IS GREATLY NEEDED.

A clear statement from this Court on whether Jaffe requires it to recognize a reporter’s privilege is greatly needed. The Third Circuit recognized a common law privilege in both civil and criminal proceedings prior to Jaffe, employing the very methodology the Supreme Court would later embrace. Cuthbertson, 630 F.2d at 146; Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979). See also In re Williams, 963 F.2d 567 (3d Cir. 1992), affirming 766 F.Supp. 358, 367 (W.D. Pa. 1991) (an equally divided en banc panel of the Third Circuit affirming a district court’s recognition of the privilege in the grand jury setting). None of the other circuits has, post-Jaffe, reached a decisive conclusion on the issue. A panel of the D.C. Circuit recently split on the issue. In re Miller, 397 F.3d at 969-973, 987-991. The Second Circuit, reviewing a district decision that had recognized the privilege, declined to decide the issue. New York Times Co. v. Gonzales, 459 F.3d 160, 169 (2d Cir. 2006), vacating New York Times Co. v. Gonzales, 382 F. Supp. 2d 457, 485-86 (S.D.N.Y. 2005).

Moreover, this issue is likely to be before the Court again in the near future in the anticipated appeal of In re Grand Jury Subpoenas to Mark Fainaru-Wada and Lance Williams, 438 F. Supp. 2d 1111, 1119 (N.D. Cal. 2006).

D.   THE PRIVILEGE, ONCE RECOGNIZED, SHIELDS WOLF FROM CONTEMPT.

Once this Court recognizes that the privilege exists pursuant to Rule 501, it is clear that Wolf is protected by it.  The qualified privilege employed by this Court requires, inter alia, that the party seeking the information from a newsgatherer first seek the desired information from alternative sources. See Shoen I, 5 F.3d at 1293, 1296. As set forth in the briefs submitted to the panel, the government has made absolutely no effort to obtain the information from any of the numerous other sources available to it.

III.    THE PANEL’S DECISION REGARDING FIRST AMENDMENT PROTECTIONS IS AN ISSUE OF EXCEPTIONAL IMPORTANCE AND IS IN CONFLICT WITH PRIOR DECISIONS OF THIS COURT.

The panel’s ruling on the First Amendment issues presents an entirely independent basis for en banc review. The decision denying any First Amendment protection to a newsgatherer served with a grand jury subpoena for unpublished information absent a showing of “bad faith” also conflicts with prior decisions of this Court.

A.   THE PANEL’S INTERPRETATION OF THE FIRST AMENDMENT AS PROVIDING A REPORTER WITH PROTECTION ONLY FROM “BAD FAITH” IS INCONSISTENT WITH PRIOR NINTH CIRCUIT PRECEDENT AND BRANZBURG V. HAYES.

While adhering strictly to Scarce in consideration of the Rule 501 privilege, the panel failed to follow the part of Scarce that addressed existing First Amendment protections for newsgatherers. The panel’s decision reducing the First Amendment protections to protection only from bad faith conflicts not only with Scarce, but with this Court’s decisions in Bursey v. United States, 466 F.2d 1059 (9^th Cir. 1972) and In re Lewis, 517 F.2d 236, 238 (9^th Cir. 1975), and the Supreme Court’s decision in Branzburg, 408 U.S. 665.

In Branzburg, the Supreme Court held that the First Amendment required a balancing of interests when a grand jury subpoena was issued “other than in good faith” or for purposes of “harassment.” 408 U.S. at 707 (emphasis added). Justice Powell, concurring, elaborated on this point. He identified four findings that could invoke a qualified privilege balancing test:

As indicated in the concluding portion of the opinion, the Court states that [1] no harassment of newsmen will be tolerated.  If a newsman believes that [2] the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if [3] the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has [4] some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such issues.

Id. at 709‑710 (emphasis and numbering added).

In both Scarce, 5 F.3d at 401, and Lewis, 517 F.2d at 238, the Ninth Circuit explained that a finding of any one of those four factors required a court to employ the same qualified privilege balancing test used outside of the grand jury context. The Scarce Court recognized additionally that a balancing of interests was necessary in the event of a “lack of substantial connection between the information sought and the criminal conduct the Government was investigating.” 5 F.3d at 402 (distinguishing Bursey on that basis). The First Circuit has interpreted Branzburg in a similar way. In re Special Proceedings, 373 F.3d 37, 45 (1^st Cir. 2004).

However the panel decision replaces this formulation with a significantly different single inquiry: Did Wolf prove that the grand jury as a whole was operating in bad faith?^[7] Memorandum at 4-5. The panel’s decision is thus inconsistent with Branzburg, Scarce, Lewis and Bursey.

B.          THE PANEL’S CONCLUSION WAS A DIRECT RESULT OF ITS FAILURE TO FOLLOW NINTH CIRCUIT PRECEDENT.

When the required multi-factored analysis is performed, the qualified privilege should be applied. As set forth in Wolf’s briefs before to the panel, the subpoena at issue here implicates each of the four factors. Two of these are summarized below.

1.                 THE INFORMATION SOUGHT BEARS “ONLY A REMOTE AND TENUOUS RELATIONSHIP TO THE SUBJECT OF THE INVESTIGATION.”

The sole subject of the grand jury’s investigation is the “attempted arson on the Police Vehicle” in violation of 18 USC §844(f)(1). [EOR 49‑50].  That remains the only federal crime under investigation. [EOR 110‑111]

However, the withheld material does not depict the alleged attempted arson. [EOR 99] All the footage depicting the police car and the protest at the time the police car was there has already been published and is available to the grand jury. [Id.] The unpublished footage is apparently sought for some other, broader and unspecified, “ongoing investigation about what happened that day.” [EOR 135-36]  It is, in other words, a fishing expedition. This is exactly the type of “remote and tenuous” relationship, lacking a “substantial connection” to the alleged criminal conduct, that the Scarce test was designed to address.

2.                 THE SUBPOENA DOES NOT INVOLVE A “LEGITIMATE NEED OF LAW ENFORCEMENT.”

As the portion of the videotape depicting the protest at the proximate time of the alleged arson is already public, there is no “legitimate need” for Wolf’s unpublished footage of other events that day. However, there is a plainly “illegitimate” motive, and it is one that the Branzburg Court specifically contemplated as a situation in which a privilege would apply. Writing for the Court in Branzburg, Justice White noted a specific “illegitimate” motive for seeking unpublished testimony from a newsgatherer: that subpoenas from a grand jury “undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources.”  408 U.S. at 707‑08.

That is precisely the situation here. Wolf has developed a level of trust as a journalist with a dissident group in our society.  That trust is critical to his ability to secure access to their members, meetings, and public demonstrations.  Without it he will be barred from filming. The subpoena here is a direct attack on that trust and, if satisfied, will destroy his ability to continue to cover his sources, in private as well as public places. [EOR 99:17-26].  Indeed there is testimony that the mere fact of the investigation, coupled with the government’s announced intention to use Wolf’s tape to identify individuals at the demonstration, have already interfered with his journalistic abilities. [EOR 99:20‑21; 27‑100:2]

CONCLUSION

          As this matter presents an issue of exceptional importance, and as the panel’s decision conflicts with prior decisions of both the Supreme Court and this Court, and as there is a compelling need for uniformity, this Court should grant Wolf’s petition for rehearing en banc.

Dated: October 9, 2006

                                                 SIEGEL & YEE

                                                 Dan Siegel  

                                                 Jose Luis Fuentes

                                                          FIRST AMENDMENT PROJECT

James R. Wheaton

David A. Greene

Sophia S. Cope

By_____________________

    Dan Siegel 

Attorneys for Appellant

JOSHUA WOLF

CERTIFICATE OF COMPLIANCE

          The foregoing petition complies with the requirements of the Federal Rules of Appellate Procedure, Rules 29(d) and 32. The brief is proportionately spaced in Times New Roman 14-point type. According to the word processing system used to prepare the brief, the word count of the brief is 3624.

          Dated: October 9, 2006

                                                                   SIEGEL & YEE

                                                                   By__________________

                                                                       Dan Siegel

PROOF OF SERVICE

          I, DAN SIEGEL, declare as follows:

          I am an attorney duly licensed to practice law in the State of California. I am not a party to the within action. My business address is 499 14th Street, Suite 220, Oakland, CA  94612.

          On October 10, 2006, I served copies of the following documents:

(1)  Petition for Rehearing

on the parties to this action by email transmission to:

jeffrey.finigan@usdoj.gov

and by arranging for mail or messenger delivery on October 11, 2006, to:

Jeffrey R. Finigan

Assistant United States Attorney

450 Golden Gate Avenue

San Francisco, CA  94102

          I declare under penalty of perjury that the foregoing is true and correct. Executed on October 11, 2006, at Oakland, California.

                                                          __________________________

                                                          Dan Siegel