Newspaper groups join defense of Kansas newspaper that was raided by police

An Aug. 13 letter by the Reporters Committee for Freedom of the Press to Marion (Kansas) Chief of Police Gideon Cody has been signed by dozens of newspaper groups, including Gannett, E.W. Scripps, The New York Times, The Washington Post and others. 

The letter reads in part:

Dear Chief Cody,
 

"On Aug. 11, 2023, law enforcement officers with the Marion Police Department executed a search warrant at the Marion County Record’s newsroom and at its publisher’s home, and seized the Record’s electronic news gathering equipment, work product and documentary material.

"The Reporters Committee for Freedom of the Press (the “Reporters Committee”) and the undersigned 34 news media and press freedom organizations write to condemn that raid. Newsroom searches and seizures are among the most intrusive actions law enforcement can take with respect to the free press, and the most potentially suppressive of free speech by the press and the public.

"Based on public reporting, the search warrant that has been published online, and your public statements to the press, there appears to be no justification for the breadth and intrusiveness of the search – particularly when other investigative steps may have been available – and we are concerned that it may have violated federal law strictly limiting federal, state, and local law enforcement’s ability to conduct newsroom searches. We urge you to immediately return the seized material to the Record, to purge any records that may already have been accessed, and to initiate a full independent and transparent review of your department’s actions.

"As detailed in the search warrant, on Friday your department executed a warrant at the Record’s offices and at the home of its owner and publisher that authorized the seizure and forensic search of electronic media, as well as the confiscation of journalistic work product and documentary material related to a named individual. 

"Your department’s seizure of this equipment has substantially interfered with the Record’s First Amendment-protected news gathering in this instance, and the department’s actions risk chilling the free flow of information in the public interest more broadly, including by dissuading sources from speaking to the Record and other Kansas news media in the future.
 
"Further, as you acknowledge in your public statement, the federal Privacy Protection Act of 1980 (the “PPA”) protects that flow of information to journalists by prohibiting law enforcement, including local agencies, from searching for or seizing journalistic work product1 or documentary materials, except in narrow, exceptional circumstances. See Pub. L. No. 96-440, 94 Stat. 1879 (1980), codified at 42 U.S.C. §§ 2000aa, 2000aa-5 to 2000aa-7.

"As you note, authorities may only search for or seize work product if the immediate seizure is necessary to prevent the death of, or serious bodily injury to, a human being, or where there is probable cause to believe that the possessor has committed or is committing certain crimes. This “suspect exception,” which you cite, is inapplicable when the relevant conduct consists of the receipt, possession, communication, or withholding of the material, with only limited exceptions for certain federal statutes that are not at issue here. 42 U.S.C. § 2000aa(a)(1)-(2).

"For documentary material, which it appears was also seized by your department,2 the PPA adds two additional exceptions that permit its seizure by law enforcement, neither of which appear to apply here: (1) when notice pursuant to a subpoena would result in destruction, alteration, or concealment of such materials; or (2) when such materials have not been produced pursuant to a court order directing compliance with a “Work product” is material prepared by the journalist or another in anticipation of reporting to the public. It is defined as material that is prepared, produced, authored, or created by any person in anticipation of that material being communicated to the public; is possessed for the purposes of communicating such materials to the public; and includes the mental impressions, conclusions, opinions, or theories of the person who created the material. 42 U.S.C. § 2000aa-7(b).

“Documentary materials” means materials upon which information is recorded. 42 U.S.C. § 2000aa-7(a) (listing examples, such as photographs, video, and audio tapes). Neither documentary materials nor work product materials include contraband; the fruits of a crime; things otherwise criminally possessed; or property designed or intended for use as, or which has been used as, the means of committing a criminal offense. 42 U.S.C. § 2000a-7(a) and (b). That said, and crucially, it is well-settled First Amendment law that the possession of material that may have been acquired unlawfully in the first instance by a source, but where the news organization has not participated in the underlying offense, is constitutionally protected. Bartnicki v. Vopper, 532 U.S. 514 (2001).

æIn short, search warrants based on the mere receipt, possession, communication, or withholding of work product material are virtually always proscribed with only limited exceptions, and the PPA’s “subpoena first” requirement for documentary material reflects the law’s design to steer law enforcement to the least intrusive investigative means with respect to newsrooms. Both help ensure that affected news organizations can negotiate the scope of a demand or challenge one that is overbroad. Applying these principles to the search your office conducted of the Record, its sweep – and the related threat to the Record’s lawful news gathering and reporting – clearly runs counter to the intent of the statute, regardless of the asserted predication for the search.

"It is also meaningful that the U.S. Department of Justice takes such investigative steps so seriously that the Attorney General must personally sign off before members of the department may execute a search warrant for “the premises of a news media entity.” See Policy Regarding Obtaining Information from or Records of Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media, 28 C.F.R. § 50.10(d)(2)(ii) (2022). Notably, that Attorney General authorization requirement applies even when prosecutors are invoking the suspect exception under the PPA for search warrants.

"Importantly, the state of Kansas has recognized similar sensitivities with respect to the compelled disclosure of unpublished information and confidential source identities, see K.S.A. § 60-480 to 485 (statutory reporter’s privilege), and the U.S. Court of Appeals for the Tenth Circuit has cautioned, in recognizing a qualified reporter’s privilege in this jurisdiction, that “any infringement of the First Amendment must be held to a minimum that it is to be no more extensive than the necessities of the case,” Silkwood v. Kerr- McGee, 563 F.2d 433, 437 (10th Cir. 1977).

In short, the search warrant directed at the Marion County Record was significantly overbroad, improperly intrusive, and possibly in violation of federal law. Again, and crucially, we urge you to immediately return any seized equipment and records to the newspaper; purge any such records retained by your department; and initiate a full, independent, and transparent review into your department’s actions."

For more, see https://www.spj.org/pdf/8-13-23-reporters-committee-marion-letter_final…