KANSAS CITY, Mo. — Following a police raid at a newspaper in the small Kansas town of Marion, questions are arising about First Amendment rights and searches involving news organizations.
KSHB 41 anchor and I-Team reporter Caitlin Knute turned to a local expert, Mark Johnson, an attorney and KU professor, who teaches and practices first amendment law.
We aired a portion of that conversation, but wanted to share the entire interview here.
Knute: Is it rare to have a news organization raided by the police?
Johnson: "In my experience? Unprecedented. In 1978 there was a raid at the Stanford University newspaper offices, and the Supreme Court decided the case rising out of that. And the Court said that was not a violation of the first amendment. Two years later, to reverse that decision, Congress passed a law, called the 'Privacy Protection Act,' that sets out a very specific procedure that has to be followed before government or a prosecutor or a police department can do what happened in Marion last Friday."
Knute: It’s my understanding that typically in these situations if a police department wanted information from a news organization, they would have had the option to subpoena that information.
Johnson: "Sure. And usually, in practice, it’s kind of three steps. First thing they do is they ask, 'Do you have a tape of this incident? Do you have some information about the specific crime that we are trying to investigate?' And if the station or the newspaper doesn’t turn over the information voluntarily, which they do sometimes, then they would follow with a subpoena. And that is a piece of paper that outlines what the government wants to get. They give it to the station or the newspaper and the newspaper decides how to respond. And only after that, if they still haven’t gotten the information that they want, and they want to persist in getting it, can they follow, there’s a very narrowly defined procedure to obtain and execute a search warrant.
Knute: We still don’t know the particulars about what prompted this. What we do know is that they were alleging a reporter, investigating the tip, committed identity theft. Those were the allegations. What kind of protections do we, as journalists, have when we get tips, when we investigate tips?
Johnson: "Well, goodness knows how many times you receive tips from people and you don’t know where they got the information. You don’t know whether they got it lawfully, you don’t know if they got it unlawfully. And sometimes you ask, sometimes you don’t ask. The thing is if the reporter was not involved in obtaining that information, even if it was obtained by the source illegally, the reporter, if he or she decides to use that information, is protected by the first amendment. The reporter has done nothing wrong legally. Now, whether it’s good journalistic ethics or not, I’ll leave that up to other people to decide. It’s entirely legal.
Knute: Explain what you said, protected by the First Amendment, how so?
Johnson: “Protected by the First Amendment means that, for example, if somebody sues for an invasion of privacy, you know, you publish information about me that I consider private and it was embarrassing. They file a lawsuit, the newspaper, or the television station says what we did was within our First Amendment rights, and therefore your lawsuit has no merit. And the court would agree with that. So, that’s what I mean when I say something is protected by the First Amendment, it’s a defense that the news reporter can raise."
Knute: So, now looking at what’s happened today, we understand they have revoked the search warrant, and they have returned all of the property. I’ve never heard of that happening before, have you?
Johnson: “In my 43 years of practicing law, no. It’s, in my experience, unheard of for an investigator, whether it’s a prosecutor or a policeman or something like that to say, ‘We revoke the search warrant.’ And in fact, the County Attorney said that he looked into it, and said that the information that they had was insufficient to support the search warrant in the first place. So, what he’s essentially saying is, ‘We shouldn’t have gone about this process, we should not have obtained the search warrant.’ So, what the County is trying to do is to get everything back to square one, saying ‘No search warrant, we’re giving everything back to you.’ But, the one thing that the newspaper is doing that I think is very smart, is saying that once you return our equipment, we are going to have somebody a forensic expert there to image the hard drives and everything and that way we can find out if the police actually accessed anything. Because, if they are not supposed to obtain the equipment in the first place, and that’s what the County Attorney has said, they are certainly not supposed to access anything, you know, try to find out what’s on the hard drive. And so, with this forensic expert, the newspaper would find out whether over the weekend, the county accessed anything.
Knute: As journalists it’s our duty to hold the powers that be accountable, and we have to have certain protections to be able to do that. Does this set a dangerous precedent for other news organizations who could say ‘hey, this could happen to us?
Johnson: “Absolutely, and it doesn’t have to happen to you. If it happens to somebody else, a sensible person would say, ‘Maybe I should think twice about publishing information like this in the future.’ So, we are always afraid of what’s come to be known as ‘the chilling effect.’ You may not be the person subject to the search warrant, but somebody down the street was, and you don’t want that to happen to you. So, maybe I just want to publish something that somebody didn’t like to read. So it deters people from doing their jobs, and the press has a special role in our society, and among other things, one of the parts of that role is to publish things that some people find unpleasant. At the end of the day, sometimes you’re going to publish information that folks might not like; embarrassing, humiliating things that people think should be private. But, if it’s true, then you, the public, has a right to see it or read it."
Knute: What do you make of the KBI’s involvement and the fact that they are taking over this case? Anything that you’ve noticed in the statements they’ve put out in terms of reading between the lines what they’re trying to say?
Johnson: “I think, reading between the lines, what’s going on is this — that everything that the police department or the county, everything that has happened up to now, they want to put behind them. If they want to continue to investigate whatever happened it’s got to be somebody new and they have to start from scratch, because everything that was discovered, or would have been discovered by the police department, would never be allowed into evidence if they decided to prosecute a crime, because it was obtained illegally, or appears to have been obtained illegally. On the other hand, with the Kansas Bureau of Investigations stepping in and taking over the investigation, I’m pretty sure they’re going to start right from the beginning, they’re going to go back to before anything happened, interview people, do everything right from the start so everything that they get and everything that comes from what they get would not be tainted by what’s happened up till now.”
Knute: On the flipside, could the newspaper file a lawsuit for improper search and seizure?
Johnson: “Absolutely. Yes, there is this law that specifies what has to be done before a search like this can be done. By all indications none of that happened. So, the newspaper could file a lawsuit, the publisher of a newspaper and a reporter who was involved in the search, could similarly file a lawsuit under the federal law and go to federal court, and I think they would have a very strong case, even with all the stuff being given back, because they’ve already suffered injury. You know with what the police did it made it more difficult for the newspaper to publish, it made it impossible for reporters to do their jobs. They took their cell phones. Their personal cell phones. I mean these days nobody can operate without those, and goodness knows that it’s what you do most of your work with. So, you know, they could file a lawsuit. I’m sure the county doesn’t want them to. Whether the newspaper is going to proceed with it I don’t know.”
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