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Reporters Committee For Freedom of The Press Letter
Reporters Committee For Freedom of The Press Letter
Your Department’s seizure of this equipment has substantially interfered with the
Record’s First Amendment-protected newsgathering in this instance, and the
Department’s actions risk chilling the free flow of information in the public interest more
broadly, including by dissuading sources from speaking to the Record and other Kansas
news media in the future.
As you note, authorities may only search for or seize work product if the
immediate seizure is necessary to prevent the death of, or serious bodily injury to, a
human being, or where there is probable cause to believe that the possessor has
committed or is committing certain crimes. This “suspect exception,” which you cite, is
inapplicable when the relevant conduct consists of the receipt, possession,
communication, or withholding of the material, with only limited exceptions for certain
federal statutes that are not at issue here. 42 U.S.C. § 2000aa(a)(1)-(2).
For documentary material, which it appears was also seized by your Department,2
the PPA adds two additional exceptions that permit its seizure by law enforcement,
neither of which appear to apply here: (1) when notice pursuant to a subpoena would
result in destruction, alteration, or concealment of such materials; or (2) when such
materials have not been produced pursuant to a court order directing compliance with a
subpoena, all appellate remedies have been exhausted, and there is reason to believe that
1
“Work product” is material prepared by the journalist or another in anticipation of
reporting to the public. It is defined as material that is prepared, produced, authored, or
created by any person in anticipation of that material being communicated to the public;
is possessed for the purposes of communicating such materials to the public; and includes
the mental impressions, conclusions, opinions, or theories of the person who created the
material. 42 U.S.C. § 2000aa-7(b).
2
“Documentary materials” means materials upon which information is recorded.
42 U.S.C. § 2000aa-7(a) (listing examples, such as photographs, video, and audio tapes).
Neither documentary materials nor work product materials include contraband; the fruits
of a crime; things otherwise criminally possessed; or property designed or intended for
use as, or which has been used as, the means of committing a criminal offense. 42 U.S.C.
§ 2000a-7(a) and (b). That said, and crucially, it is well-settled First Amendment law that
the possession of material that may have been acquired unlawfully in the first instance by
a source, but where the news organization has not participated in the underlying offense,
is constitutionally protected. Bartnicki v. Vopper, 532 U.S. 514 (2001).
2
delay in an investigation or trial occasioned by further proceedings relating to the
subpoena would threaten the interests of justice. 42 U.S.C. § 2000aa(b)(1)-(4). With
respect to the “interests of justice” exception, the person possessing such materials must
be permitted to submit an affidavit explaining why the materials are not subject to
seizure. 42 U.S.C. § 2000aa(c).
It is also meaningful that the U.S. Department of Justice takes such investigative
steps so seriously that the Attorney General must personally sign off before members of
the department may execute a search warrant for “the premises of a news media entity.”
See Policy Regarding Obtaining Information from or Records of Members of the News
Media; and Regarding Questioning, Arresting, or Charging Members of the News Media,
28 C.F.R. § 50.10(d)(2)(ii) (2022). Notably, that Attorney General authorization
requirement applies even when prosecutors are invoking the suspect exception under the
PPA for search warrants. Id. And, when newsroom searches do occur, they not only
generate broad public outcry but also can result in significant liability for the
municipality and agency. See Thomas Fuller, San Francisco Police Raid on Journalist
Alarms Free Press Advocates, N.Y. Times (May 13, 2019), https://perma.cc/K5AK-
K5CU; Luke Henkaus, San Francisco Expected to Reach $396,000 Settlement with
Journalist Bryan Carmody Over Police Raid, Reporters Comm. for Freedom of the Press
(Mar. 5, 2020), https://perma.cc/AX75-5HVG.
Importantly, the state of Kansas has recognized similar sensitivities with respect
to the compelled disclosure of unpublished information and confidential source identities,
see K.S.A. § 60-480 to 485 (statutory reporter’s privilege), and the U.S. Court of Appeals
for the Tenth Circuit has cautioned, in recognizing a qualified reporter’s privilege in this
jurisdiction, that “any infringement of the First Amendment must be held to a minimum
that it is to be no more extensive than the necessities of the case,” Silkwood v. Kerr-
McGee, 563 F.2d 433, 437 (10th Cir. 1977).
In short, the search warrant directed at the Marion County Record was
significantly overbroad, improperly intrusive, and possibly in violation of federal law.
We urge you to immediately return any seized equipment and records to the newspaper;
purge any such records retained by your Department; and initiate a full, independent, and
transparent review into your Department’s actions.
3
If you have any questions or wish to discuss, contact Reporters Committee
Executive Director Bruce Brown or Gabe Rottman, the director of the Technology and
Press Freedom Project at the Reporters Committee. They can be reached at
[email protected] and [email protected].
Sincerely,
Reporters Committee
for Freedom of the Press