Is press freedom under fire in Marion, Kansas? Last week, a police raid on a newspaper in a small Midwestern town raised questions about whether local officials had violated the First Amendment — and what impact such a move could have on local reporting across the country.

On Friday, officials executed a search warrant on the offices of The Marion County Record as well as the homes of its owner and an editor. What they hoped to find is still murky. The paper’s publisher, Eric Meyer, has said he believes the raid stems from his team’s investigative reporting about local politicians, including the police chief, while the county has indicated that the search was connected to a document about a local restauranteur that the newspaper had allegedly obtained improperly.

While the Marion chief of police has defended his actions, saying that his department would soon be “vindicated,” dozens of news organizations have decried the search as “interfer[ing] with the Record’s First Amendment-protected newsgathering” in an open letter released by the Reporters Committee for Freedom of the Press.

According to David McCraw, a lecturer at Harvard Law School and the top newsroom lawyer at the New York Times for more than two decades, the raid — “extremely rare” in modern times — may have violated not only the First Amendment, but also a 1980 law designed to bolster press freedom in the wake of similar clashes between police and news organizations.

In an interview with Harvard Law Today, McCraw, author of the book “Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts,” explains why, if left unaddressed, the situation could have a “chilling effect” on both newspapers and the sources they rely on.

Editor’s note: This interview was conducted before a local prosecutor announced on Wednesday that the search warrant against The Marion County Record would be withdrawn and all seized items returned to the newspaper. Meanwhile, the Kansas Bureau of Investigation has said it will continue its own investigation of the incident.

Harvard Law Today: What is your take on the situation in Marion?

David McCraw: It’s concerning for several reasons. One of which is that it suggests that a law [the Privacy Protection Act] that was passed in 1980 by Congress and signed into law by the president has not yet reached law enforcement generally. I also think it’s concerning to the extent that we can read it as a certain hostility towards press freedom.

I should stress that we don’t know all the facts. We haven’t seen the probable cause affidavit. I have been involved in enough litigation to know that the facts can sometimes come to surprise you once they’re known. But on the basis of what we know now, it does seem as if they violated the law, and that it was done with a fairly willful disregard of the value of a free and independent press.

HLT: There is some suggestion that the raid may have arisen from a claim that the newspaper “illegally” obtained information about a local resident’s arrest record. How should we be thinking about this?

McCraw: There are two separate issues here: what’s legal and what’s illegal for reporters to do, and then the other issue is what investigative tools can be used by law enforcement to investigate a potential crime. What happened here is solely about that second issue — what are the tools that investigators can use, what is it the police can do to get information — and this is an entirely separate issue from whether the law was, in fact, violated by the newspaper.

The way the Privacy Protection Act of 1980 works is that when law enforcement is seeking journalistic work product or other documents from journalistic enterprises — whether newsrooms or individual journalists — the officers have to use a subpoena, not a search warrant. What happened in this situation is that they used a search warrant, and the difference between those two things is important. The critical difference is that with a subpoena, it can’t be enforced until the target of the subpoena has an opportunity to go to court and challenge it. So, in a case like this, what should have happened, based on the facts that we know, is that law enforcement should have served a subpoena on the newsroom, and if they felt that it was too broad, that they were seeking material that was privileged under the law, they could then go to court and quash it. With a search warrant, you don’t have that choice. With a search warrant, the first time you know about it is when they’re at your door. They’ve gone to court, but they’ve gone to court without you being present.

“When law enforcement is seeking journalistic work product or other documents from journalistic enterprises — whether newsrooms or individual journalists — the officers have to use a subpoena, not a search warrant.”

As I mentioned, there’s an entirely separate issue of whether reporters can break the law in pursuing a story — and the answer to that is: They can’t. They are subject to almost all the same generally applicable laws that would apply to anyone. You can’t trespass to get a story and claim a First Amendment defense. If you illegally eavesdrop on somebody’s phone call, you can’t say, “Well, I was doing it in the pursuit of the First Amendment.” But that’s all a separate question from what can be used to gather information. In a case like this where it’s probably unlikely that a crime was committed by journalists, it’s particularly invasive, because they’re going after materials that were gathered for news reporting purposes. These materials were gathered in order to help inform the public.

HLT: How often do raids on American media organizations happen in modern times?

McCraw: Extremely, extremely rarely. There was a case three or four years ago in San Francisco, where law enforcement was seeking the source of a freelance journalist in a murder investigation. A search warrant was used, and there was a lawsuit by the journalist. The law enforcement agency ended up paying more than $300,000 to settle it. This also comes up from time to time where there is a seizure of a photographer’s camera at the scene of unrest or violence, as another example. Those cases usually get worked out pretty quickly.

But the interesting thing about the 1980s, when the Privacy Protection Act was passed, is that it was so different than what we see today. The bill enjoyed bipartisan support, because both Republicans and Democrats in Congress saw that it was important to prevent law enforcement from overreaching. Senator Strom Thurmond and Senator Ted Kennedy were two principal sponsors of the bill — quite a gap in political views between the two of them — but they both saw the value of having an independent press not worry about the police coming and knocking down the door and seizing what they want to seize based on a warrant that they obtained unilaterally. The 1980 law grew out of a raid that was done at Stanford University on a student newspaper. Police were investigating a demonstration that had turned into civil unrest and went into the newsroom of the student newspaper to obtain photographs of the scene.

HLT: From what you’ve said, the 1980 law was in response to concerns like the Stanford raid. Is that correct?

McCraw: Yes, the Stanford case became emblematic because the Supreme Court upheld the search, and the 1980 law was an attempt to set that right — that there was a lack of protection for the newsroom without Congress acting. As with all these protections, from time to time, some law enforcement agencies don’t get the memo. But in my experience, when that’s happened, it’s been a matter of making phone calls, and people have gotten their cameras back or whatever the issue is.

There are times when we can argue about where the line should be drawn, when the statute should not apply. The statute applies to the seizure of journalistic materials that a newsroom is using in the pursuit of journalism. I can think of hard hypotheticals where, for instance, a business reporter is getting information about a merger strategy and makes trades based on that information. If the FBI said, look, that wasn’t journalism, that was somebody using insider information to get an illegal advantage in the marketplace — you have a decent argument about whether it should be subject to this law. But the Marion situation doesn’t seem close. The only reason the newspaper had any information about the restauranteur’s drunk driving conviction and other driving issues was because they wanted to report about her.

HLT: In a previous interview with Harvard Law Today, you said you were alarmed at the return of the use of litigation by powerful people to silence the media. Does this situation fall under that description, or is something different going on here?

McCraw: The difference is who is behind the infringement on press freedom, as I see it. In the previous interview, I was really talking about the fact that people have been incentivized to use libel cases to bring private action, and that had been at the very heart of Times v. Sullivan in 1960, which sets up protections that publishers get when they write about public figures. Fast forward to our current times, and you see politically and economically powerful people who dislike what they’re seeing about themselves in the media and using libel as a way to chill that speech. Even just needing to spend money to defend claims that are not meritorious is something that has a chilling effect.

In the Marion case, it’s actually the government that’s acting — the government is the infringer on press freedom. And to some extent, that goes back to something really, really basic, in that the First Amendment was designed to support an independent press so that it could be a check on government. And when the government acts outside the law, as appears to be the case in Marion County, that goes to the very fabric of the independence publishers and broadcasters have.

HLT: What do you expect the newspaper’s next moves to be?

McCraw: I don’t have any insider information, but I can tell you that in the normal course, there will be a couple of things that happen. First is that it will seek the return of its materials, along with an agreement that they won’t be used by law enforcement, which is also what the letter by the Reporters Committee for Freedom of the Press asked for. The other thing that could happen is this: the Privacy Protection Act of 1980 allows publishers and broadcasters whose rights are violated to bring lawsuits against law enforcement agencies. I have no idea whether the Record has an appetite to do that, but that would be an option open to them, and the facts are in their favor. If they won, they would be entitled to damages.

“If this goes unaddressed, then I think there’s both a chilling effect on the press and a chilling effect on their sources. … It will encourage news organizations to not be as aggressive as they should be in pursuing stories.”

HLT: In your view, what is the impact of this situation on press freedom?

McCraw: If left unaddressed, the impact is bad. It will encourage news organizations to not be as aggressive as they should be in pursuing stories. If they have a fear that their records will be seized, they will inevitably want to avoid that situation. I think it also profoundly discourages sources from talking to news organizations. One of the things we haven’t addressed is that Kansas has a shield law which broadly protects confidential sources. If law enforcement can get a search warrant and seize documents and in fact reveal who the newspaper was talking to, that shield law is meaningless. The concern is when there are actions by government that discourage conscientious citizens and government workers from coming forward and bringing attention to wrongdoing that has taken place. We need those kinds of sources. So, if this goes unaddressed, then I think there’s both a chilling effect on the press and a chilling effect on their sources. 

On the other hand, the silver lining here is that this is an opportunity to teach the nation about the importance of press freedom. It is a moment when we can stop and say there is a reason for the Privacy Protection Act of 1980. There is a reason we have independent journalists. There’s a reason we need to protect these things. I’m hopeful that given all the media attention that’s been paid to the case, assuming it turns out the paper was in the right, that this could be a moment when we as a nation can rally around the value of press freedom.

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