Update: Photos have been returned.
When police are not trying to clamp down on photographers for exercising their First Amendment right, they are obtaining search warrants that allow them to seize these photographs to assist them in their so-called investigations.
Or more like, intimidations.
The latest incident occurred at James Madison University in Virginia when police raided the offices of the school’s newspaper, confiscating almost a thousand photos of an off-campus riot that occurred the prior weekend.
The Breeze was apparently the only newspaper that reported on the incident, which normally would be considered a victorious scoop but has now turned them into victims of police intimidation.
The Student Press Law Center, an organization that provides legal assistance to university newspapers, accused the cops of violating the Privacy Protection Act, a federal law enacted in 1980 that supposedly protects publishers from these types of seizures.
Congress enacted the Privacy Protection Act (“PPA”) to reduce the chilling effect of law enforcement searches and seizures on publishers. The PPA prohibits government officials from searching or seizing any work product or documentary materials held by a “person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication,” unless there is probable cause to believe the publisher has committed or is committing a criminal offense to which the materials relate. The PPA effectively forces law enforcement to use subpoenas or voluntary cooperation to obtain evidence from those engaged in First Amendment activities.
The search warrant was approved by Rockingham County Commonwealth’s Attorney Marsha Garst after the newspaper’s editor, Katie Thisdell, refused to hand over the images.
“I said that the only ones that we were going to release at this time were the ones that were on our Web site and the ones that were already published,” Thisdell said. “I didn’t feel like it was our responsibility to give information to the police and be the investigators for them.”
Rather than obtain a subpoena, as they are required to do, cops turned to the county attorney and obtained a search warrant.
After much outcry, Garst agreed to temporarily seal the images until a legal agreement can be reached.
The affidavit justifying the search warrant was sealed, which experience tells us, means they have absolutely no legal justification.
After all, that is the same thing that happened when Phoenix police obtained a search warrant to raid the home of a blogger who was critical of them last year.
Charges against that blogger, as well as the police officer who was accused of providing him information for his website, were dropped last week.
In this case, the search warrant can be sealed for up to a year.
A university professor who also happens to be a “legal consultant” to the newspaper said the search was legal because of certain exceptions to the privacy act.
Media arts and design professor Roger Soenksen, legal consultant to The Breeze, said the search was legal but unnecessarily invasive. There are exceptions to the Privacy Protection Act, one of which is exclusivity: Information can be seized if there is no other source.
But considering more than 8,000 people supposedly participated in the riot, in which 30 people were arrested, there is no way these images are the only ones out there.
In fact, on this link alone there are several videos from the “riot,” none which appear to be associated with The Breeze.
The Society of Professional Journalists, never ones to shy away from standing up for other journalists rights, including my own when I was arrested, expressed “outrage” over the raid in a letter to the county attorney.
Numerous newspaper editorials have condemned the raid, including one central Virginia newspaper editorial that accused the cops of being “out of line” and another that accused the county attorney of “overreaching.”
An online poll in USA Today also has most people disagreeing with the raid at this time.
Here is the SPJ letter in its entirety:
Marsha L. Garst
Commonwealth’s Attorney for Rockingham County and the City of Harrisonburg
53 Court Square
Harrisonburg, VA 22801
Dear Ms. Garst:
The leadership of the Society of Professional Journalists is outraged by your actions when you barged into the offices of The Breeze at James Madison University on Friday, April 16, 2010 and seized over 900 published and unpublished photos from the newsroom. We are especially troubled that your actions appeared to have violated the federal Privacy Protection Act of 1980.
The office of the Commonwealth’s Attorney has trampled on the freedom of the press by trying to use this media outlet as an arm of law enforcement. In a democratic society it is vital to have an unfettered press free to exercise the First Amendment without fear of government intervention.
We recognize the need to investigate an out-of-control public event where crimes may have been committed but there are more appropriate tools available to law enforcement than to bully the student newspaper.
We would like to point out that your own state’s constitution says that, “The freedoms of speech and of the press are among the great bulwarks of liberty and can never be restrained except by despotic governments.”
We ask that you return ALL of the materials, as well as copies, taken during your raid and issue an apology to the student newspaper, its staff and the University community.
Sue Kopen Katcef
SPJ Campus Adviser At-Large
SPJ Campus Adviser At-Large
SPJ Vice President of Campus Chapter Affairs
SPJ Director At-Larg