Blogging All the Way to Jail

Glyn writes "Time magazine is reporting on Josh Wolf the 'first blogger to be targeted by federal authorities for not cooperating with a grand jury.' Josh would have normally been protected from government coercion by California state shield laws but the prosecutors have argued its a federal matter, using quite shaky logic. Josh's blog is being updated by his mother, providing updates on what is happening. From the article: '"Not only does this logic seem silly," Wolf told TIME in June after receiving his final subpoena, "but if unchallenged it will have a deleterious effect on the state protections afforded to many journalists, both independent and those that are part of the established media." Judge William Alsup of Federal District Court rejected Wolf's arguments, and declared him in contempt of court. So he is now being held in a detention center in Dublin, Calif, where he could remain until next July.'"

Comments

Re:Gateway

[notaspunkymonkey]

Do people in US Jail get access to the Internet? just wondering if there are any Blogs out there from people who are actually inside prison at the time of writing - in the UK you are not allowed internet access - however there are computers.

Well

[zoomshorts]

"The feds say they have jurisdiction over the case because the police car is partly U.S. government property since the S.F.P.D. receives federal anti-terrorism money."

This is like saying that since I am an American citizen, that there is some portion of the collective
"Amreican Dream/Resources" that is owned by ME, and I have the say , to be able to stop the government
from drilling in Alaska or anywhere, and selling MY portion of the public reosurces to anyone. Hmmmm.

Re:Well

[cowboy76Spain]

It is called "voting"

Re:Well

[dangerz]

I'm sorry, I live in the United States. What exactly is this "voting" thing that you're talking about and does it actually work?

Re:Well

[Phreakiture]

If the police car in question is federal property because some federal funds went towards its purchase, then it logically follows that the folks who allegedly set it on fire were burning their own property, because, as taxpayers, they own the federal government.

As the latter part of that argument doesn't hold water, neither should the former.

Re:Well

[gstoddart]

If the police car in question is federal property because some federal funds went towards its purchase, then it logically follows

that the feds partially own everything bought by any city or state agency who in any way receive any form of money from any federal agency, and that all of those things are under federal jurisdiction.

As your post so nicely points out, that is patently absurd.

Hopefully someone can stop this line of reasoning and have it declared illegal very quickly. Or else, the feds will be able to claim jurisdiction for practically anything, at any time, merely because they wish to, and the agency in question received some federal moneys at some point. So much for the Constitution.

Watching America become a friggin' police state is very troubling, and I'm not even American.

Re:Well

[susano_otter]

If the police car in question is federal property because some federal funds went towards its purchase, then it logically follows that the folks who allegedly set it on fire were burning their own property, because, as taxpayers, they own the federal government.

They weren't burning their own property. They were burning our property. We have rules about who gets to burn police cars, and where, and when, and how. Personally, I fucking hate it when someone decides that the rules apply to everybody except them. They want to change our rules, let them discuss it with the rest of us, so that we can all agree on the changes. If they're not going to do that, then as far as I'm concerned, they've separated themselves from the rest of us, and no longer have any claim on our joint assets and privileges. The sooner our executive agents throw the book at these asshats, the better.

Re:Well

[penrodyn]

I should say that I was orginally from the UK but I'm now in the US. I have noticed a difference in the way each country percieves it's government which probably stems from the way they were set up. In the UK we generally do not trust the government, until recently UK residents were classed as subjects not citizens. The UK government was also carved out of a monarchy which is naturally a system of subjection. The UK police in particular are not to be trusted. In the USA however, at least in theory, the government was formed by the people and I think generally US residents tend to trust their government whatever they do.

Typical method of Fed intimidation

[Shivetya]

the Feds, backed by their "own" courts consistently use the idea that if Federal money is involved, no matter how loosely, that this trumps state's rights. This is primarily used to force "unfunded/underfunded mandates" on the states.

I totally disagree with the tactics being used to force the video to be made available. At the same time I think its wrong to cover up a crime because of one's beliefs. If you videotape a crime then you are obligated to report it. There can be none of this "its okay for us but not them mentality" because we are all us and them at the same time.

He claims there is no crime on the tape, fine, then show it and be done with it. Get it to a public outlet. If there is a crime then he just publicity hounding and forcing an issue that should never had occured.

Hopefully the Feds will lose this attempt to secure the tape but at the same time hopefully he will turn it over to someone if it shows a crime being committed. Willful destruction of property should not be tolerated in any state, free or not. If you cannot protest without destroying someone else's property you need to be locked up as your not a productive part of society let alone doing your cause any good.

Re:Typical method of Fed intimidation

[kfg]

He claims there is no crime on the tape, fine, then show it and be done with it.

http://en.wikipedia.org/wiki/COINTELPRO

Some of us remember.

KFG

Re:Typical method of Fed intimidation

[mikelieman]

"If you videotape a crime then you are obligated to report it. "

That cuts both ways, but as we've seen, NYPD among others has a habit of providing EDITED TAPES when supoeaed.

IF you want to hold The People to a standard, FIRST hold The Man to it.

Re:Typical method of Fed intimidation

[Kaktrot]

At the same time I think its wrong to cover up a crime because of one's beliefs. If you videotape a crime then you are obligated to report it.

If you are a journalist covering a riot, or any large social diturbance, you are going to see crimes. If you can be compelled to show criminals on the tape, then pretty soon no journalist will cover such things for fear of retribution from the rioters, who know that the guy taping them will have to hand his tape over to the feds. Not much longer, and there won't be any tapes of such things. If you took it to an extreme, we'd have a Tiananmen Square sort of deal, only for slightly different reasons.

Re:Typical method of Fed intimidation

[Whiney Mac Fanboy]

Thank you.

The number of people replying "Just show the tape, if it has no crimes" in this thread really bothers me. It bothers me because of the shortsightedness/lack of history awareness they show.

Operations such as cointelpro are almost certainly continuing to operate. People like Josh Wolf are the targets. The people most likely to be on his tapes are his friends, family & associates.

If he hands over these tapes, he can expect everyone on them to be harassed. Frankly, thank the gods for people like him - they stand between us & a far more opressive world.

Re:Typical method of Fed intimidation

[Whiney Mac Fanboy]

So in choosing to protect his friends from being prosecuted for the crime of arson over choosing to protect the rest of us from being victims of an arson fire makes for a better civilization?

Whoops, you made a typo - let me correct it for you:

So in choosing to protect his friends from being harassed for peaceful participation in a protest, thus helping to protect the rest of us from being victims of similar harrassment make for a better civilization?

What an enlightened attitude.

Why, it is an enlighted attitude - we agree :-)

Re:Typical method of Fed intimidation

[civilizedINTENSITY]

No, you don't get it. It isn't about protecting friends and family from prosecution. It is about protecing friends and family from persecution.

Re:Typical method of Fed intimidation

[civilizedINTENSITY]

"Destruction of property is not a peaceful act of assembly, and as a crime, is a person's duty to report to the appropriate authority so that justice can be served."

No, actually the stated ideal is that for democracy to work, we need to have an informed electorate. That means that journalism serves a purpose that is valuable and worth protecting. This is exactly why CA has a Journalistic Shield Law in place. What does trump the shield law is if a *defendent* requires the information, never (ever) a prosecutor. Note that the shield law is intended to shield a journalist from subpoenas, so "they issued a subpoena for his footage" is less than impelling.

What it comes down to is that the state of CA has laws that protect its citizens. The current federal administration's Dept of Justice doesn't give a rat's ass about such nicities.

Re:Typical method of Fed intimidation

[Rogerborg]

And if you happen to get footage of any uppity nigras sitting in the front of busses, it's your patriotic duty to hand it in to the FBI.

Re:Typical method of Fed intimidation

[Rogerborg]

And when the rights of We, the People peaceably to assemble are abridged, then what do we do? Roll over and take it? Is that what the Founding Fathers would have done? Not just no, but Hell, no!

When government - Executive, Legislative and Judicial - ignore the Constitution, then they lose the authority to govern. It's that simple.

Re:Typical method of Fed intimidation

[JonToycrafter]

You want proof the NYPD edits its tapes that it uses as evidence? Here's the NY Times article (you have to pay):

Here is a graphic that you don't need to pay for.

Googling for NYPD RNC edited tapes turns up a bunch of hits.

I was actually involved in this story - I volunteered to watch videos of the RNC protests to write logs for them for I-Witness Video. I logged the differences between the tapes, although it was someone else who first noticed the difference - Eileen Clancy, who's mentioned in the article. Also edited out, but not mentioned in the NYT article, is the NYPD beating the shit out of a black protestor.

Nor is this an isolated incident - the NYPD routinely denies that tapes exist. In an unrelated case, a witness's tape caught several plainclothes cops on camera with videotapes in one of these cases, and the NYPD said, "How do you know those are cops, that could be anyone." Eileen had to be called to the stand to testify that those people had been identified as cops in other videos before the NYPD (and DA's office) admitted that tapes existed and released them to the defense.

Or how about the Miami PD denying they attacked a first aid station during protests there in 2003, despite reports that the PD videotaped it?

I'd like to see the Feds take action in THOSE cases (the DOJ was supposed to look into the NYPD abuses, but Google turns up nothing after the initial announcement). Josh Wolf is a brave man, and his reasons for not providing the tape certainly, in the context of our country's law enforcement tactics, certainly outweigh the potential benefit of releasing the tape.

Re:Typical method of Fed intimidation

[jrister]

If the government turns against the people, then thats a whole other issue entirely, and as the Constitution and other founding documents state, we the people must take appropriate action up to and including violence, if needed, to ensure that Freedom is upheld.

But having read those documents many times, it dosent seem to indicate that the Founding Fathers felt that violence should be the first and only course of action. Thats not the spirit of the Constitution. Violence should never be the first or only course of action. First line of defense is to PEACEFULLY state what needs to be stated, send a message, be that in some form of mass demonstration or whatever. See the Declaration of Independence where it explains that the Founding Fathers and their colleages spent years trying to peacefully change things in England. They Petitioned for Redress. Thats not read "rioted and destroyed property".

From Declaration of Independence

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.

Thats not read "rioted and destroyed property". Can you provide any proof that their destroying that police car helped their cause at all? Of course not, because it didnt. Its not always necessary to create havoc, destruction, and mayhem, in order to get the job done.

Further, in this case, they were rioting about the G8 summit. What the hell does that have to do with the United States (aside from being a part of the meeting), and the Constitution? It doesnt, and thus the whole ideaology that they were taking part in a legitimate uprising against a tyrannical government is bunk. "I'm really pissed off that several world leaders are getting together to discuss the bullshit in the world!" Get a life. That dosent give anyone the right to destroy property, whether they think they are justified or not.

I agree that the media deserves protection from prying eyes and overzealous prosecutors, and the right to maintain the confidentiality of their sources. Otherwise, how else would we have found out about the NSA wiretap programs, and such? I know it could be argued that in both cases, someone commited a crime (burning a car vs. sharing "state secrets"). But I guess I see both scenario's differently. In one case, someone burned a car because they thought they were justified (and common sense leans toward the idea that theres no sensible reason for doing so) but in the other case, someone blew the whistle and exposed a deep violation of Constitutional rights, and thats a just cause. And since it's been exposed, its now in available to the people to do something about it.

So no, I dont suggest we roll over and take anything, ever. We pick our battles wiseley, and do things that make sense.

I don't know

[cdrudge]

I guess I know know what to think. On one hand, I agree with Josh in that if current laws say that unpublished work can remain confidential. I think that gets diminished a little when get selectively chooses to show clips of the video, but I probably agree with his side of the argument, at least in principal.

However, I see the flip side where a crime was committed (the burning of the police car) and the police have a right and duty to investigate the crime. At least from the Time write-up it wasn't like the police crashed his colo, forcible removed his servers, etc. It was a grand jury that subpoenaed him for the evidence. That's their job. Josh had the right to ignore the subpoena to which the Judge charged him with contempt.

I won't argue that saying it's a federal issue because SFPD gets federal funding is a little shady. Every government organization gets federal funding in some way so every government lawsuit should be transferred to federal court. The whole jurisdiction issue aside, it seems to me that things are working as they are suppose to. If you don't like how the laws are written, that's fine, then lobby to get them changed. But don't bitch and moan when the letter of the law is followed.

Re:I don't know

[kfg]

The whole jurisdiction issue aside, it seems to me that things are working as they are suppose to.

Jurisdiction is the issue.

KFG

Re:I don't know

[nutrock69]

- If you don't like how the laws are written, that's fine, then lobby to get them changed.

I'm sorry - I seem to be missing the millions of dollars necessary to hire someone to bribe a politician and get a bad law changed. Regular people simply don't have this option available.

Someone else said that we have this thing called 'voting'. I am honestly wondering when the last time was that voting actually mattered in the US. Every election we get the same rhetoric, shoveled in, then shoveled out. If the office changes residents, the new guy continues the job exactly like the old guy because he/she/it is afraid to change the status quo or to upset their party line. Voting doesn't change shit, it only changes the shovel.

Re:I don't know

[LordLucless]

The reason journalists get that privelege is to maintain a free press. "Unpublished material" often includes details a journalist has recorded about people who have only agreed to talk to the journalist with the proviso that their details be held confidential. If the government was able to take that information by force, people would no longer believe a journalists assurance of confidentiality. If that's the case, then people will no longer talk to journalists about issues that could get them in trouble - like government whistleblowers, for example. If the government is able to inspect journalists unpublished materials, then nobody would ever go to a journalist to reveal damning information about government activities.

Re:I don't know

[ray-auch]

If you don't like how the laws are written, that's fine, then lobby to get them changed. But don't bitch and moan when the letter of the law is followed

Two sets of laws are in conflict here, question is which do you follow. Federal law is trying to get him to do something (turn over video) that state law explicitly says he does not have to do.

The ("a little shady") jurisdiction question is everything, you can't just say "jurisdiction issue aside..." because it is the issue.

Re:I don't know

[Opportunist]

Maybe, if we all chip in we could afford a senator? Needn't be a big one, maybe one from a small state would do.

Re:I don't know

[smooth wombat]

I am honestly wondering when the last time was that voting actually mattered in the US.

Several incumbent Congress folks were voted out of office yesterday. The three that I know of are Joe Lieberman (over 18 years in the Senate), Cynthia McKinney and Joe Schwarz (1-term Republican from Michigan).

It also appears that Rick Santorum, Senator from my state, will be unseated this fall unless the new electronic voting machines can be surrepticiously rigged after testing (which seems to be very thorough thanks to Carnegie Mellon University professor Michael Shamos). See this article which gives a brief background of him.

The key is that those fat, lazy, apathetic people who, like you apparently, don't feel their vote count, get up and vote out the incumbents. Once the incumbents are removed, if things don't improve, vote out the ones you just put in. Keep doing that until the message sinks in.

Of course being that we only have a ~30% voter turnout this will never happen and people will continue to whine that their vote doesn't matter. Which it won't if you don't get off your fat, lazy ass and cast a vote.

Re:I don't know

[TheGreek]

Several incumbent Congress folks were voted out of office yesterday. The three that I know of are Joe Lieberman

Joe didn't get "voted out of office." He simply failed to get his party's nomination for re-election.

Fortunately for Joe, the election in November is for "United States Senator from Connecticut" instead of "United States Senator from the Democratic Party of Connecticut."

Re:I don't know

[kthejoker]

Politicians are much, much cheaper than that.

You can get $600,000 in sweetheart deals just by donating $40,000 to a House campaign. Oh, and note that that's 25 people giving money, not 1 person.

Sure, two grand a person is a lot for representation, but look at the ROI. And it would only take 4,000 people donating $10 each to a cause to get this kind of treatment. Or 400 people giving $100 each.

Re:I don't know

[walt-sjc]

Several incumbent Congress folks were voted out of office yesterday.

No. These were primaries. They don't get "voted out" until the November elections. Lieberman for example will now run as an independant, so don't cout him out yet. Not sure what his chances are, but he WAS one of the few moderates out there that has bi-partisan support.

Most primaries actually have very low voter turnout, so it's fairly easy for this kind of thing to happen.

Re:I don't know

[nutrock69]

- The key is that those fat, lazy, apathetic people who, like you apparently, don't feel their vote count, get up and vote out the incumbents.

Just because I feel my vote is being ignored doesn't mean I don't vote. I do vote. Every election. And when I vote this fall, I will doing my damnedest to help unseat Santorum - just like you (you didn't say how you'd be voting, but we can all hope).

We live in a society where we are told from early childhood that "Every Vote Counts", yet we have a presidential election system that actually allows a candidate with less than the majority vote to take office. No matter what happened in Florida in 2000, there were over 200,000 votes from other states that were effectively ignored by the Electoral College. In fact, the state representatives in the Electoral College aren't even required to delegate their points the same way as their state did - they can give the election to one candidate even if the regular votes were 100% for the opposition!.

We have an election system which allows the newly elected to skew voter districts in their favor so they can keep being elected no matter what the populace really thinks. Representatives can be shuffled around after election day such that they can represent a group of citizens that didn't vote for them or possibly get voted out next time because of party influence.

And we have a governmental body that is working very hard to keep a dishonest election system intact so they can continue to keep power. Voting out the incumbents will never change this system until all of the incumbents get unseated at once. If a few get voted out the ones left chalk it up to standard deviation and continue going about ruining our lives. If every incumbent lost their job all at once they won't be able to explain it away so easily. However, only 1/3 max of our reps can be voted out at a time, so I'd be willing to bet the next group will continue trying to ruin our lives the same way.

That is why I feel like my vote isn't important - but it doesn't stop me from trying anyway.

Re:I don't know

[cap0ne]

Exactly. So the question before us is: "Is a blogger a journalist by definition?" If so, then they should be afforded the same rights as any journalist. So now it's a problem that we will have an entire nation of journalists? Wage laborers by day, independent news-gatherers by night, and all untouchable in court? You're right - what a can o' worms.

But if he is declared NOT a journalist, fine. Then they will have to decide who IS a journalist. Do you have to work for a media company with over 10 employees? 20? How about a media outlet on a "government sanctioned" list? Does any of that send up a red flag? Where will the line be drawn? The kid and his family are paying so all of us can find out.

What was he doing filming that stuff anyway? Why wasn't he home sitting on his genuine Italian leather sofa, watching his new HD television, enjoying his Stuffed Crust Meat Lovers Pan Pizza with Extra Cheese while trying to greasily text his vote to American Idol like we all know good citizens are supposed to be doing?

-TC
-----------------
"Liberty cannot be preserved without general knowledge among the people."
John Adams, 2nd U.S. President

Compensation

[Anonymous Coward]

You can count on this: when all is said and done, this guy will not be compensated in any way for government's attack on his god-given right to freedom. He will be treated like a suspect even after he is found to be innocent. Makes you feel good about living under big government, doesn't it?

Fund this now!

[zeropointburn]

This is flatly outrageous. If every one of us gives a buck to this guy's legal fund, we could actually change federal policy. Even if the court rules that the feds acted properly, it's only a buck. Instead of a soda or a scratch ticket, try gambling on something important today.

Re:Fund this now!

[rolfwind]

I'm afraid a buck isn't enough anymore. Not if you value your liberties.

Give $10 bucks instead each month to the EFF or ACLU or whatever of your choice. Do it at the cost of watching 1 less crappy movie per month, and on the plus side it will give the MPAA just a little less funding to attack our liberties at the same time.

I know it's asking for more, but for people who actually go through the effort of giving and if their time is worth anything, the difference between a dollar and $10 should be negligible. OTOH, a convenient and fast micro-payment system of the web would help in this regard as well.

From TFA:

The feds say they have jurisdiction over the case because the police car is partly U.S. government property since the S.F.P.D. receives federal anti-terrorism money.

I'm wonder if I am a federal employee now if I ever got a government grant to help me through college?

Re:Fund this now!

[amliebsch]

If he says there's no criminal evidence on the tape, that's that. If there was evidence, he would have revealed it by now; otherwise, he would be complicit in the alleged act of destruction, should it ever be revealed that he had evidence.

That is quite possibly this most naive thing I have ever read on slashdot. Are you seriously arguing, mere days after a major scandal involving fabricated news photos, that we can absolutely, unquestioningly believe that every "journalist" is telling the truth?

Re:why not hand the tape over

[Whiney Mac Fanboy]

The video tape in question was taken on a public street, why not hand it over

If you'd bothered reading the article before commenting, you'd know that he thinks the feds want video footage to identify activists not involved in the arson of the car.

He adamantly resists what he sees as the government's attempt to force him to identify various activists captured in his tapes. "It goes against every moral fiber in my body to sit back and out people for their political beliefs," he said, adding that if this interpretation stands, it could "kill politically contentious journalism in America."

Close to the last straw

[Red Flayer]

The Electronic Frontier Foundation (EFF), a non-profit that advocates for the public interest and digital rights, is more pointed by suggesting that do-it-yourself media creators should use technology to help conceal their real identities online.

The solution to the lack of a free press is to publish anonymously?

Anyone who still believes that we retain those rights enumerated in the Bill of Rights is off his rocker. Something tells me the US is in need of a (peaceful) revolution in order to shake out the evils that are festering.

Without a free press, really, what are we basing this 'democracy' on?

Re:Close to the last straw

[Shihar]

The US is still a democracy. Revolutions are simple. Get more then 50% of the vote. Get more then 2/3 the vote and you can completely rewrite the government to whatever you damn well please.

I always find the notion that the US needs a new "revolution" laughable. The US has a functional system already in place to allow revolution. Believe me, getting a 50% or even 2/3 majority is a hell of a lot easier then trying armed rebellion or even a drawn out peaceful demonstration. The issue in the United States is not the oppressed masses. The issue in the United States is the indifferent masses.

If you can't get the average American off their lazy ass to spend a single hour of their time to vote for a candidate, you can pretty much rest assured that you won't get them off their lazy asses for any sort of "revolution", peaceful or otherwise.

Hell, you don't even need to get 2/3 or 50% of the population to vote in your favor. You need to get 2/3 of the VOTING population to vote for you. If you optimistically assume that 50% of Americans who can vote do vote, that means that you need only 25% of the population that can vote to take control of the government. With a paltry 33% of the people who can vote voting in your favor, you can completely rewrite the government and constitution.

Americans don't need a "revolution". They need to get off their lazy asses and vote if they don't like what they see.

Re:Close to the last straw

[$1uck]

Are you a US citizen? I don't mean to sound rude, but your post oozes with idealism and a certain lack in understanding of how US politics works. You seem to understand how its supposed to work, but it doesn't work this way. There are two political parties in power that for all intents and purposes might as well be one. They do a really good job of keeping all the power to themselves and locking out any independants/third parties. They both claim to have differing agendas (and to a small degree actually do), but when it comes to anyone proposing some real change it won't happen. The US is in need of a revolution something to streamline and open the government. You call american voters indifferent, wouldn't you be indifferent if your only choices were coke and pepsi and you really wanted something altogether different than a cola?

Re:Close to the last straw

[Speare]

Grassroots democracy and mass public relations campaigns basically break down somewhere between 10e6 and 10e8. Why? Taking it in physics terms, the inertia of the sheeple outweighs even a huge and aware minority.

Major corporations can laugh with derision at any sort of boycott. Does Disney cower when Dobbson's flock yell about Gay Day at the parks? Can five hundred small towns bring Wal*Mart to the mat when Wal*Mart dangles a carrot of a few hundred underpaid, underinsured jobs each?

You're never going to get 2/3 of Americans to vote the whole system out. You can't even get 2/3 of Americans to put one little amendment on the constitution very often, and that's small potatos compared to legislating a revolution.

Re:Close to the last straw

[Abcd1234]

All of which is entirely immaterial to the GP's point, which is simple:

If you can't get people to vote, how can you possibly get them to rebel?

If you don't get that, consider this: Let's say you started a massive campaign aimed at all those disenfranchised voters that you somehow think will revolt given the opportunity. Your message is simple: "vote my party in, and we'll change the way the system works". Now, all you need is > 50% of the voting public in each district to respond. What do you think the odds are of winning? I'd say pretty low, wouldn't you? And yet you somehow think you can mobilize these people to revolt? Yeah... right.

The reason the existing system doesn't change is simple: for the most part, a given citizen a) doesn't see anything wrong with the way things are, so they vote for the incumbent. b) They do see something wrong but blame it on the incumbant party and believe "the other guys" will fix things (in all probably, swayed by one or two key issues which are, in reality, not that important... you know, gay marriage, flag burning, etc). Or c) they don't actually give a damn... not because they're disenfranchised, but because they genuinely don't care.

Thinking it Through: The Logic of Shield Laws

[Shihar]

This guy has evidence of a crime. Now, in this case it is a crime against the state so people are not terrible sympathetic. Not being sympathetic with the state is as American as guns and apple pie, but people are talking a guy being jailed for not exposing a crime against the state like it is some high moral battle.

What if the role was reversed? What if some pro-police blogger had a video up of protesters getting the shit kicked out of them by police? What if the Rodney King beating had been posted online with the identities of the police officers edited out on a blog? Would we still then be so adamant that a media shield is the best thing?

What if this guy had received a tape of a 12 year old girl getting raped, edited out the rapist, and then posted it onto his blog. Would people still be so adamant that he deserves some sort of media shield?

I think that people are applying the "common sense" test instead of really thinking through the implications of media shield laws, especially in a world where everyone can be the media. It is "common sense" that he would have to give up a video of a little girl getting raped, but not "common sense" that he has to give up a video of a police car being destroyed.

I like the idea of media shield laws to some extent. The press absolutely is an invaluable tool in the regulation of democracy. That said, there needs to be a coherent and consistent approach to such shield laws.

For those who believe that this man is being jailed unfairly, what do you propose the law be? Should the media never be forced to give up evidence of a crime, even in extreme cases like rape and murder? Should some crimes be protected by media shield laws and others not protected?

Re:Thinking it Through: The Logic of Shield Laws

[mgblst]

The world is not this simple. It is not black or white. Analogy are fine for helping to describe something, or explain something, but not for judging whether something is right or wrong.

That is why we have judges in a court of law, because there are a number of ways of interpreting the law as well as criminal actions.

You comparison of a police car on fire, to the rape of a 12 year old girl are so different, that it disgusting of you to even try to compare them. It cheapens the whole debate. Might as well bring in Nazis concentration camps as well.

Re:Thinking it Through: The Logic of Shield Laws

[TheGreek]

If Wolf was a big media corporation, the feds would never have bothered to file a subpoena. He's going to jail because they don't want citizen journalism, it's that simple.

Oh, really now?

Re:Thinking it Through: The Logic of Shield Laws

[rolfwind]

What if?

What if?

But it's not. The what ifs always change the situation.

I need not bring up watergate, where deepthroat was breaking laws as well (on his part) and the reporters sucessfully protected his identity - a man that I'm sure the government would have loved to prosecute for leaking state secrets or some such.

Re:Thinking it Through: The Logic of Shield Laws

[Shihar]

Why does the victim have to be 12, and why a girl? You're setting up a straw man.

Why 12 years old and why a girl? Because it is an extreme example of the law that designed specifically provoke people into thinking through the whole implication of shield laws. 12 year old girls getting raped tends to be produce deep disgusted and a complete lack of sympathy in most people, while burning a cop car really doesn't result in all that many tears for most. The point isn't to change anyone's mind, but to make people think through the full implications of the argument that the media should not have to hand over evidence of a crime. In this case the crime isn't "that bad" for most people. The question becomes how "bad" does a crime have to be before people change their minds that perhaps the media doesn't deserve infinite power to withhold evidence of a crime.

The argument isn't a "straw man" argument. It is the natural application of the law that people are advocating. The question is simple. Is it okay for the media to withhold evidence of a crime simply because they are media? Can the media withhold evidence of arson against the state as in this case? What if it was arson committed by the police against the protesters cars? Can they withhold evidence of assault? Can they withhold evidence of manslaughter? What about rape and murder? What exactly is the line that we are supposed to draw with shield laws? These are not "straw man" arguments. This is the natural line of thinking you need to take in a world where anyone can be media.

How much shielding does the media deserve in a world where anyone can be media? Do they received infinite shielding, or some limited shielding only for certain crimes?

Re:Thinking it Through: The Logic of Shield Laws

[just_another_sean]

According to Josh there is no evidence of crime on the tape. Don't mistake the power of blogging for some amateurish attempt at mimicking the media. When our country was founded, by people who would be called terrorists today BTW, the people who got the word out were amateur journalists publishing pamphlets and newsletters. Whatever your political views today you would be a fool to suggest we take the power for regular Joes like you and me to publish news. If you take the time to put something together that is based on facts and current events and then publish then you are a journalist, plain and simple. And, especially for political speech, you should be able to enjoy the rights afforded journalism.

And as for your little girl, we'll talk about that when it happens.

Re:Thinking it Through: The Logic of Shield Laws

[Kaktrot]

What if some pro-police blogger had a video up of protesters getting the shit kicked out of them by police? What if the Rodney King beating had been posted online with the identities of the police officers edited out on a blog?

They still shouldn't have to give up the tapes if they don't want to. If someone records a video and will be required to release it (and they don't want to), then they either won't record the video, or edit it and put out the edited version anonymously, or destroy it when they're done. An edited video would be better than nothing, which is very well what the public would get if you give a good incentive not to tape things of an instigative nature.

What if this guy had received a tape of a 12 year old girl getting raped, edited out the rapist, and then posted it onto his blog. Would people still be so adamant that he deserves some sort of media shield?

That would be child pornography, which would be quite covered under different laws.

I think that people are applying the "common sense" test instead of really thinking through the implications of media shield laws, especially in a world where everyone can be the media. It is "common sense" that he would have to give up a video of a little girl getting raped, but not "common sense" that he has to give up a video of a police car being destroyed.

I respectfully suggest that you yourself aren't thinking through the implications as far as you could. It seems to me that if the government requires any sort of recording to be given to the court, for whatever reason, no one will be willing to take such recordings. If Mr. Wolf is indeed pressed hard enough to relinquish his video, then videos like it will only be posted anonymously, and with less frequency. What good does that do anyone? It would be the same, only journalists willing to take such video will be forced to do their work while worrying that someone would find their identity. They would be moved to the fringes of legitimacy, and we would be a little closer to state run, or at least state-approved journalism.

Should the media never be forced to give up evidence of a crime, even in extreme cases like rape and murder?

They should not. Anything that the media is forced to give up will cease in short order, which does no good for the public.

Re:Thinking it Through: The Logic of Shield Laws

[Fnkmaster]

Okay, so maybe shield laws suck. Maybe not. But if the state of California has one, it has to abide by it. Playing jurisdictional games that make a mockery of the law to circumvent a shield law is entirely unacceptable. If you really want to change this, then you should convince the people of California that they need to repeal or modify their shield laws using the arguments you outlined above instead of posting them on Slashdot to justify the blatant falsehoods being perpetrated by a judge to circumvent them.

Re:why not hand the tape over

[penix1]

"I'll agree that (and I am not an american here) the damage to federal property argument does seem tenuous at best. But that seems rather beside the point."

That is EXACTLY the point, and I do live in the US. It is a State's rights issue that has been fought since the establishment of the union. The federal government gets its rights from the States. Changes to the Constitution, for example, must be ratified by the states before they become valid.

The ones who should be upset by tenuous funding connections to yank jurisdictions should be the States.

I would be interested to know when this filming occurred. If it was pre-9/11/2001 then there was no "anti-terrorism" federal funding going to cities. That was one of those "unfunded mandates" before 9/11.

B.

Re:Gateway

[just_another_sean]

Well I just read TFA and I didn't see a reference to his mother continuing to blog as the reason cited for this being a federal case. My understanding from reading TFA is that the footage that Josh shot was of G8 protestors lighting a police car on fire. Because the Fed Gov gives money to CA for "anti-terrorism" which is then used to fund things like police cars this is now a federal matter. Becasue we all know a guy who is politically active but doesn't agree with the current ruling party is just a half step away from Osama Bin Laden. Especially when he is prone to carryng a video camera with him everywhere he goes.

We have truly become a police state. In the name of anti-terrorism everything Americans know and love about the USA is quickly dieing.

It's been quoted a thousand times but I think in this context it bears repeating:

"They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Ben Franklin
1775

Re:why not hand the tape over

[Anonymous Coward]

If you'd bothered reading the article before commenting, you'd know that he thinks the feds want video footage to identify activists not involved in the arson of the car.

yes, the operative words being 'he thinks'. But if he thinks that the feds haven't already got footage of every 'activist' at that G8 protest, he's a fool. What they seem to not have decent footage of is those activists setting fire to a car.

I still don't see his problem, unless he thinks arson is a legitimate political tool.

Meanwhile in Chinese-occupied Tibet...

[Anonymous Bullard]

Meanwhile in Chinese-occupied Tibet a 29-year-old Tibetan teacher and writer, Dolma Kyab, was sentenced to 10 years in prison where the Tibetans are invariably infected with tuberculosis and other serious heath problems (besides the usual other forms of "mistreatment" by guards) for... having written a book which wasn't even published!

Details of such a heinous thought crime can be found here.

In the past the US of A took a much stronger stand against such obscene human rights violations by the Chinese regime and other dictatorships, but it is very clear that the current regime in Washington has neither the intention nor moral standing to help oppressed and occupied peoples. You see, the dictators in Beijing are among Bush's "staunchest allies" in this bizarre "global war of terror" where the occupied and the oppressed are considered to be the "terrorists"!

Dubya's inaugural address (2005) now reads like a sad mockery of the Freedoms the USA used to claim to be representing:

Today, America speaks anew to the peoples of the world:

All who live in tyranny and hopelessness can know: the United States will not ignore your oppression, or excuse your oppressors. When you stand for your liberty, we will stand with you.

Democratic reformers facing repression, prison, or exile can know: America sees you for who you are: the future leaders of your free country.

The six million Tibetans living in the world largest concentration camp they once knew as their homeland meanwhile haven't even got a clue that the "world's most powerful man and the leader of the Free World" ever uttered those words. Even possessing a copy of the UN's Human Rights Declaration is enough to get a Tibetan slammed into the Chinese prison camps...

Re:Gateway

[CaymanIslandCarpedie]

My understanding from reading TFA is that the footage that Josh shot was of G8 protestors lighting a police car on fire.

Slight correction, the feds are arguing the footable MIGHT show G8 protesters lighting the car. Josh says there is no such thing on his video. So the federal judge ruled its a federal case, because federal agents speculate that its possible it may show something which if streched as far as possible could be seen as a federal case even though those who have seen the video say it shows no such thing.
That seems a VERY low threshold for over-riding the states jurisdiction.

Re:why not hand the tape over

[Kaktrot]

Protecting vandal's rights, if indeed there is vandalism in evidence, strikes me as a guy who is choosing the wrong battle to fight.

He's protecting activists' anonymity. Even if he were only protecting some punks who lit a car on fire (and I don't think he is), then he still shouldn't have to hand over his videos, or the next time he tries to go record video in a chaotic situation, those punks will light him on fire. No journalist, no matter how big or small, should be forced to be an agent of the police.

Re:Gateway

[skoaldipper]

I believe Oliver Stone is currently in post production of "Biatch, I Shrunk my Cellmate", starring Josh with Rick Moranis as his prison poon. Josh slips through the bars and later blogs his video adventures of red and black ants fighting over dead camels in Iraq. I've seen the trailer, and the worst part is when a black ant straps some cream of wheat to his belly and charges a red mound yelling "lu lu lu lu lu lu"...

Re:So what happens...

[code_nerd]

In that case they still have footage that allows them to identify a bunch of protesters for later, targeted, COINTELPRO-style activities.

Let me go out on a limb here

[CXI]

Is the government trying to silence this guy? Have they confiscated his footage without leaving him a copy? Are they trying to change the story he's reporting? Are they locking him up for his political views?

No, no, no and no. In fact, it's exactly the opposite. The courts have ask him to produce video footage of a crime that he witnessed and he has refused. That's exactly the same as lying in court and it carries a penalty of jail time. This has absolutely nothing to do with the First Amendment so it's no wonder the judge wasn't impressed. He's trying to make the claim that all you have to do to be able to lie in court is start up the video camera on your cell phone and become an instant journalist. That's the implication of claiming that anyone that puts up a webpage falls under the shield laws. So maybe the law needs to be rewritten to better define what a journal is, or perhaps it's already clear, I haven't checked. However, all I can say to Josh is "what did you expect, you lied in court? The First Amendment allows you to peacefully criticize the government, it in no way allows you to withhold the details of a crime."

Re:Gateway

[Anonymous Coward]

Define journalist for us, then. Or would you prefer that the government defined it?

Remember long ago that the British government wanted to stifle our pamphleteering, which was aimed at destroying British loyalty. Our forefathers ensured that we would always have this right when they created the first amendment.

Turning the tables

[pandrijeczko]

Now let's imagine a different scenario...

Josh Wolf's mother gets stabbed in the street and the attacker is caught on a video camera by someone who refuses to hand over the video tape.

What's Josh going to want to happen THEN?

Re:why not hand the tape over

[Whiney Mac Fanboy]

Or can you only be willing to stand up for your beliefs when there's no chance of repercussions?

James Madison was one of those people - I'm sure if you'd been around back when the father of the consitution was (anonymously) writing the federalist papers, you would have said to him "Can you only be willing to stand up for your beliefs when there's no chance of repercussions?"

But that's all a little beside the point - none of the people in the videos are being given a choice, its the blogger who's deciding....

Re:Gateway

[Kierthos]

Depends on where in California he would be. A 7 foot tall man, in a gorilla suit, juggling live chickens would not stand out in parts of Berkeley.

Unfortunately the ACLU is part of the problem

[njdj]

Give $10 bucks instead each month to the EFF or ACLU or whatever

One of the reasons the government has successfully eliminated many rights which we thought were guaranteed by the Constitution, is that there has been no focus of opposition.

The ACLU should have focussed our attention on the violations as they happened. But the ACLU is very partisan. For example, it opposed the recall of Governor Gray Davis, a Democrat, in California, on completely spurious grounds. It should keep out of party politics. People who care deeply about the Bill of Rights can be found among Republicans as well as among Democrats, and we need all such people. The ACLU drove them away, by this and many other campaigns.

By all means support the EFF, by the way, though I'm not sure it's as relevant to this particular case as a properly-functioning ACLU would have been.

Re:Unfortunately the ACLU is part of the problem

[demonbug]

To be clear, the article you linked to said absolutely nothing about the ACLU being opposed to the recall of Gray Davis. What the article you linked to said was that the ACLU argued that the vote should be delayed until counties still using the punch card system deemed unreliable after the 2000 vote were able to bring better systems online. According to your article, the ACLU's lawsuit was only concerned with ensuring that all votes would be recorded as accurately as possible.

In slightly more depth; the ACLU did not "oppose" the recall election, they were instead attempting to ensure that each person who bothered to cast a vote had their vote counted. At that time it had been mandated that new voting machines be in place before the next general election, but 12 counties had not yet complied with the order (since they still had a significant amount of time before the next "regularly scheduled" election was to take place). The ACLU was pointing out that since the recall election would take place before the 12 counties wouold be able to get their act together, resulting in another election with wide-rannging impacts potenitally being decided by voting machines officially considered unreliable, the election should be delayed until those counties were able to comply.

Like usual, the right then jumped all over them (as you do) for getting involved in party politics, when in fact they were doing what they have done incredibly consistently in the past - attempting to protect the civil liberties that we enjoy, regardless of what narrow group it will harm or help in the short term. The ACLU is functioning perfectly well; the problem is that people like you consistently mis-interpret their fights to protect our basic rights and liberties in terms of who they are helping or hurting short-term; the same people who say how evil the ACLU is when they fight, for example, for the freedom of speech of groups that are widely despised.

Re:Gateway

[Fnkmaster]

I do not see how this would be anything but a federal matter.

Did you read the summary of the argument for Federal jurisdiction? It is apparently based on the fact that the SFPD receives Federal anti-terrorism funding. This is absurd. Though I find the act of burning police cars repugnant and I loathe most of these nonsensical protestors more than anything, I can't abide the abuse of jurisdiction just to browbeat a guy into giving the Feds a video that somebody says might contain footage of a crime being committed.

I don't know what the qualifications for being a "journalist" are, but if the state has laws that shield journalists, why not let the state court decide whether the guy is a journalist rather than relying on a complete legal fiction and an "ends-justify-the-means" attitude towards jurisdiction?

Re:Gateway

[IAmTheDave]

People cannot be allowed to set fire to police cars!

No, but police should not be allowed to sieze anything they want in an investigation, especially from someone who is not a suspect in said suspected crime. Siezing my car because it may have driven past the flaming police car is (or should be) illegal.

Re:Gateway

[Manitcor]

Im not sure what your definition is, but here are a few definitions to keep you occipied.

FWIW this man is a journalist and by the most technical means ANYONE holding a camera recording footage to be reported to the general public is a journalist. Not just someone who gets a paycheck from a major news media company.

This is what is sad about our country these days, people assume that to do things, even simple things you must be registered and have some form of permission from some higher power. This is supposed to be a free country not free so long as its ok with mommy Administrative branch and daddy Judicial branch. Sadly thats what we are coming to.

Re:Gateway

[andrewman327]

Actually they have every right to seize your car if they can get a warrent based on the fact that one of the vile criminals touched it briefly and may have left fingerprints.

It seems that the police have a warrent. I get the feeling that the police are not revealing everything they know (which is normal proceedure for an ongoing investigation). The judge must have been told something else to make him issue a warrent.

Here is something that bothers me: if he did not record anything illegal, which is his claim, why won't he testify before the grand jury? How can he try to hide behind a shield law if he did not record any crime? If he is telling the truth, it seems like his testimony would be a quick "No sir, I have never seen the defendants before at any time in my life." And if his video is not damaging to the defendants, why not release it? He has no sources to protect, which is a big reason they have shield laws in the first place.

And now we see what "state's rights" means when

[Serveert]

you have all 3 branches of government.

It means you pay a lot of lip service to state's rights.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Gateway

[civilizedINTENSITY]

"How can he try to hide behind a shield law if he did not record any crime? "

Perhaps because the shield law is about Protecting Unpublished Information and Confidential Sources and specificly "all notes, outlines, photographs, tapes or other data of whatever sort" for the purpose of protecting "a journalist from being adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for the failure to comply with a subpoena."

So if he is a journalist, then he should be covered. I don't see how he could possibly not be a journalist. So he should be covered. It certainly feels as though the Feds are more or less saying, "You have it, we want it, we are taking it."

Re:Your whole premise is wrong

[stubear]

That's supposed to be its function but Josh Wolf appears to be above the law and is not allowing the Grand Jury to do its job, claiming that he has a first amendment right to withhold evidence of a crime being committed.

Re:Gateway

[JabberWokky]

More important than definitions, here's legal precedence.

Although it doesn't seem to support what most people think... basically anybody can be required to testify in front of a grand jury. In the courtroom, the first amendment doesn't give special rights to the press. And in a position that you might want to think about before replying, I agree. There should be no special legal benefits given to a citizen over another citizen based on their profession. I find it amazing that most people here are happy with giving special legal shelter to a "special class" of citizen.

Equality under the law should apply to all citizens.

--
Evan

Re:Gateway

[JabberWokky]

Lest my point be misconstrued, I'm not advocating that people should be forced to testify on a whim. In fact, I'd say that "everybody is equal to the press", and the criteria should be fairly high to compel testimony from any citizen.

Anybody can fire up a blog and become the press -- and many people on the in public carry a digital camera or video recorder at all times as part of their cell phone. I think that rather than dispensing special rights to a "special class" that is becoming less and less distinguishable from the public, we should re-examine why and under what circumstances any citizen is compelled to give testimony.

--
Evan

No, no, no

[phorm]

The courts have ask him to produce video footage of a crime that he witnessed and he has refused

NO. The courts are trying to get him to produce video of a crime that he supposedly witnessed. In fact, even when the video is turned in it might have no burning cars at all... but what it might have are the faces and identities of a bunch of protestors for the police to happily round up and put thumbscrews to. How often nowadays is being within the vicinity of lawbreakers seen as being involved with them, pretty damn often.

On for the record, the state laws do allow him to with-hold the tape, which is why the government has gone to dubious stretches of logic to make it a federal issue.

Re:Gateway

[cayenne8]

"That is why they were granted the warrant: to see if there is useful information on the video. They had probable cause to get the warrant (seeing him filming near the protests)."

I would argue that the STATE authorities might have cause to get a warrant...but, not the feds. As far as I can tell, no crime was committed here to a federal agent, nor federal property. The larger question here is, the feds really stretching facts to try to make a state case a federal case. They are trying to usurp the states rights in this case. There should be no federal jurisdiction in this case...at least from what I can tell.

Just torture him, he'll give up the tape...

[bodland]

Under new "laws" (decrees) being drafted by Bush minions they can simply declare him a enemy combatant, torture him and the find him guilty in a secret military tribunal.

Re:Gateway

[tinkerghost]

That is why they were granted the warrant: to see if there is useful information on the video. They had probable cause to get the warrant (seeing him filming near the protests). Nobody's rights are being violated here, this is just a run-of-the-mill protecting protesters case where some kids makes himself out to be a victim. They should charge him with felony obstruction of justice. Get over yourself Slashdot, this is NOT a "your rights online" paranoia-fueled big government tin foil hat case!

Um, there is one little tiny point you missed. This is being processed as a Federal Case because the State has laws in place to protect him from this type of lawsuit. The police car is registered to the State - not the Federal - Government. The incident occured on a public road - not Federal Land. The type of crime - arson - is State - not Federal. The Federal Government has no jurisdiction. What they are using is an extremely far fetched claim of partial ownership of the police car, based on the fact that DHS gave the City govt a Block Grant.

The problem is that Block Grants are just that Grants - they don't impart any degree of ownership. If the US Govt isn't listed on the car's title as a joint owner, and the value of the part ownership isn't listed in the DHS accounting books, they don't own it & don't have standing for jurisdiction in this case. The issue isn't that somebody is trying to get him to fork over his tapes, it's that the people who are doing it don't have the legal standing in a sane world to do it. California put into place a law specifically to avoid intimidating the press like this, by making it a Federal case under extremely dubious context, the Federal Government is sidestepping that law and vastly overstepping it's jurusdiction.

Re:Mod parent up even though he is wrong :-D

[plague3106]

Its too bad you had to post AC (I totally understand why though), as I almost didn't read your comment (ACs start at -1 for me..)

At anyrate, the problem becomes that the government could compel you to had over ANY tape on which they THINK a crime might have been recorded. As a journalist, I think you can see why that could be a problem. Its not only protection of sources, its protection of what the journalist investigated. Think of a case where the government finds you have a tape you're doing to use in your investigation; they could demand you hand it over (and likely a copy won't do... they'll want the original, because a copy may have been edited by you) and you never see that tape again.

If the actions were in plain site (which it seems they were) they should be able to find someone that saw it and is willing to testify, should they not? No one was around except the protesters?

I never said the people in this particular case had a privacy right or need to be protected; its the tactics used by the government which have implications in other cases which is the problem.

Re:You are part of the solution

[99BottlesOfBeerInMyF]

Anyone who witnesses a crime and does nothing is not a citizen, and is not entitled to treatment as a citizen.

Have you ever seen anyone speeding and not called it in? If you saw a 90 year old man in horrible pain attempt to stop the pain through suicide would you physically force him to continue to suffer?

Who is to say what is a crime even, let alone what is "evil" or unethical? Is the crime of burning a police car any less ethical than the crime of intentionally keeping an entire nation on the brink or starvation for your own personal profit? No one who is not a police officer has any obligation to try to stop crimes that they don't object to or just don't feel like doing. Even police officers have the right to renounce their position instead of enforcing unjust laws. Our entire nation and way of life was based upon standing up and refusing to obey unjust laws.

If evil doers know that the press is watching and that the information gathered will be used to stop them, they may think twice before acting.

Yes, but if those doing good know that anyone watching or participating can be compelled to provide information about their activities to corrupt and abusive authorities, then they two may reconsider doing good. That is why we have due process and enumerated rights. Vandals burning a car are nowhere near the threat to freedom and the citizenry that a corrupt government is, which is why the law is designed to protect us from an authoritarian government even if it means a few vandals get away.

Re:Gateway

[sumdumass]

Not exactly anyone. First, all the state shield laws define who is intended to protect. IE, it says who is and who isn't considered a reporter, press ect.

I didn't realize there was such a difference in legal definitions until someone pointed me to this page. More can be found here. In california though, he seems to be considered a jounalist for a number of reasons but the most compelling is that a news agency already purchased some of his work reguarding this.

If some one witnessed a crime first hand, I don't see a problem with compelling them to give testimoney or evidence. If they didn't witness it first hand, then I can understand the hesitation. Lots of criminals get away with if because the witness is given an option to not provide evidence. This allows the criminals to create a sence of fear of reprisals if the witness helps. If they were compelled to testify or turn over evidence, this fear would be pointless. But that is a chicken and egg problem.

Many people who claim the press "should be free no matter what" would change thier minds if the press witnessed a crime commited directly against them. I have seen these positions reverse first hand when someone recorded a vehicle breakin resulting in over $5,000 in damages. The champion of free speech and freedom of the press turned into a whinning wimp complaining that the criminals (who he thinks he knows) would be caught if they could view the tape. Unfortunatly the tapes were destroyed as the story goes but after letting the person know that they recorded the crime and refusing to let the cops see it. Of course i doubt the reporter actualy recorded the instance, he was more likley antagonizing the person because of some other issues between them.