Lena Shapiro is a clinical assistant professor of law and the inaugural director of the College of Law’s First Amendment Clinic, supported by The Stanton Foundation. Shapiro, an expert in free speech issues, spoke with News Bureau business and law editor Phil Ciciora about the police raid on the Marion County Record, a small local newspaper in Marion, Kansas, owned by former U. of I. journalism professor Eric K. Meyer.
The right to a free press is one of the five freedoms enshrined in the First Amendment of the U.S. Constitution. Just how much did the police and the courts in Marion, Kansas, overstep their constitutional limits when raiding the offices of the Marion County Record?
The federal Privacy Protection Act provides broad protections to journalists and their work product, making it illegal – with few exceptions – for law enforcement officers or government officials to search a newsroom and seize newsgathering materials, even when in connection with a criminal investigation. The law generally requires the police to proceed using a subpoena, rather than a search warrant, when it seeks information from a reporter or news organization, precisely to prevent the type of raids that took place at the Marion County Record. That procedure enables the newspaper to challenge the demand in court before having to comply.
While the law contains some narrow exceptions that permit searches in some extraordinary circumstances, none apply in this case.
How unusual is what happened in Marion, with police raiding a newsroom, the home of the newspaper’s publisher and editor, and the home of the town’s vice mayor?
It’s unheard of. We have strong press protections in this country that protect both the press as an institution of vigorous reporting, and the individual reporters themselves.
Do we need a federal shield law for reporters? Would such a law have afforded the newspaper and its journalists any additional protection?
Absolutely. The recently re-introduced bipartisan Protect Reporters from Exploitive State Spying Act is “the strongest federal shield bill for journalists we’ve ever seen,” according to Seth Stern, director of advocacy for the Freedom of the Press Foundation. “Its definition of journalist is broad, its exceptions are narrow and targeted, and it restricts subpoenas directed not only to journalists but to their phone and email providers.”
Do you foresee this raid having a chilling effect on reporting and newsgathering in the U.S.?
Of course it does. Even though the search warrant was subsequently withdrawn and the raid was widely condemned, it has undoubtedly shaken many newsrooms nationwide.
Nevertheless, reporters have strong resolve and I don’t believe we’ve yet seen the full fallout against the government for pursuing this raid.
Kansas prosecutors ordered police to return the computers and cell phones seized in the raid. Will that act as a deterrent against future raids at other media outlets – or perhaps inspire more bad behavior among law enforcement against media outlets or journalists whose reporting they don’t like?
The act of returning the seized materials after the fact doesn’t mitigate the damage of an unjustified raid, and it certainly doesn’t provide adequate relief to the grieving Meyer family. It is not enough that they have given the seized materials back after a Marion County Attorney admitted there was insufficient evidence for the warrant. This raid should never have happened in the first place, and I hope that the embarrassing outcome for Marion County in the government officials’ pursuit of the raid serves as a deterrent to others who want to push aside First Amendment protections to retaliate against journalists.
What should the consequences look like for local officials? If there are no consequences to the raid, what’s to stop other law enforcement officers elsewhere in attempting a similar raid to intimidate media outlets?
The newspaper and its attorney have reported they are considering a lawsuit against the city, so as with many First Amendment violations, we will see it play out in court. But this highlights the need for a federal press shield law that would prevent the government from compelling reporters from being forced to disclose their sources and ensure that important data held by a third party, such as a phone or internet company, cannot be seized without notice and provide the ability to challenge the move in court.
Government officials cannot be allowed to pursue these kinds of raids in the dark. They need to be held to exacting scrutiny and be forced to defend their positions in court.
Tensions between journalists and the public, including public officials, have been rising in recent years. How much of this can be attributed to the bullying and intimidation of reporters by politicians who routinely denounce reporting they don’t like as “fake news” and journalists as enemies of the people?
It highlights the importance of a robust press to democracy. We need thorough journalists who inform the public, and we need to provide them the legal protection to do so without threat of an unsanctioned raid.