On Aug. 11, law enforcement executed a search warrant at the Marion County Record in Kansas, seizing equipment from the office and home of its co-owners in response to allegations of identity theft and illegal use of a computer. After national outcry from press groups and First Amendment advocates, the search warrant was withdrawn. But the incident has raised concerns over press freedom violations.
In light of these events, the WNA is providing members with the following information and resources on press freedom.
When can newsrooms be searched and/or journalists’ materials seized by law enforcement?
In 1980, the U.S. Congress enacted a law called the Privacy Protection Act. The Act makes it illegal for law enforcement to seize materials used by journalists for their work pursuant to a search warrant. Law enforcement is required to obtain a court subpoena for the information.
The difference between the two is that a search warrant allows law enforcement to execute the search immediately versus the subpoena which requires the journalist to produce the specified material at a designated time and place.
Additionally, a journalist is allowed to move to quash or otherwise object to the subpoena requests prior to producing the requested information. The only exceptions to this requirement are if the documents are “necessary to prevent the death of, or serious bodily injury to, a human being,” if the journalist in question is suspected of committing a crime or if law enforcement believes the documents will be destroyed if they are not seized immediately.
At the state level, many states have what is referred to as a “shield law” or “journalist’s privilege” that provides either an absolute privilege or a qualified privilege to refuse to disclose sources used or information obtained during news gathering. In Wisconsin, the Legislature enacted the privilege in Wis. Stat. sec. 885.14. The privilege is absolute as to confidential sources and very strong, though qualified, for non-confidential sources and information.
What should I do if my newsroom is subject to an improper search?
Journalists should keep a copy of the federal Privacy Protection Act handy for reference.
Should a journalist be confronted with a search warrant that is believed to be in violation of the Privacy Protection Act or a subpoena requesting information that may be protected from disclosure, the journalist should immediately contact legal counsel. If law enforcement violates the Privacy Protection Act, the journalist may recover damages of “not less” than $1,000 plus “reasonable attorney’s fees” and other reasonable “litigation costs.”
WNA members presented with a search warrant or subpoena should contact an attorney or seek advice via the WNA Legal Hotline at 608-284-4000.
What other resources are available?
Additional legal resources for Wisconsin journalists can be found on the WNA legal resources webpage.
Help defend press freedom & support the Marion County Record
The WNA has released print and digital ads in support of the Marion County Record in Kansas. Feel free to add your logo to the ads.
For more news, information, advocacy efforts, editorials, and other commentary regarding the raid at the Marion County Record, please visit the following:
