The police raid on a local Kansas newspaper in August stunned many First Amendment advocates. But it was far from an isolated incident.
A few months earlier in Tampa, Florida, freelance journalist Tim Burke was awakened by banging on his front door. He was greeted by FBI agents with a search warrant.
Agents seized nine computers, seven hard drives, four cellphones and four notebooks as part of a criminal investigation into whether Burke had hacked Fox News.
“I didn’t really know how to feel at the time because I wasn’t entirely sure exactly what was going on,” Burke told VOA. “It was baffling.”
Burke has built his career on accessing livestreams that he says are publicly available — like unaired footage of a Fox News interview with Kanye West in which the rapper expressed antisemitic views.
“Anybody could have found it,” Burke said, referring to the West video. “The practice of investigative journalism itself is under threat if you reach a point where accessing information that was readily available to the public is outlawed.”
Burke still isn’t sure who is accusing him of what. The affidavit submitted in support of the search warrant remains sealed, and he has not been charged, but he disputes any wrongdoing.
Tampa's FBI office told VOA it was unable to provide specific details about an ongoing investigation.
Few searches involve warrants
Data from the U.S. Press Freedom Tracker show that out of over 90 search-and-seizure instances involving journalists documented since 2017, nine have involved search warrants.
And reporters and newsrooms are fighting similar battles in North Carolina, Missouri and California in a trend that concerns press freedom advocates.
“When journalists obtain information, legally, without having broken the law themselves, they’re fully entitled to publish it. The government is not entitled to demand the information back. The government is not entitled to restrain publication of the information,” said Seth Stern, advocacy director at the Freedom of the Press Foundation.
“It’s really a shame that judges and government officials keep ignoring those well-established principles when they find them inconvenient,” Stern told VOA.
The question of whether information was obtained illegally was the basis for the raid on the Marion County Record in Kansas on August 11.
A Kansas prosecutor on Wednesday found insufficient evidence to support the raid on the weekly newspaper and home of its publisher, Eric Meyer. And the Kansas Bureau of Investigation announced it would be investigating what prompted the raid.
Footage captured on the paper’s surveillance system showed officers taking away computers and other equipment. The case is concerning, said Katherine Jacobsen, U.S. and Canada coordinator at the Committee to Protect Journalists.
But, she said, "It's really important, longer term, to think about protections that can be put into place to make sure that this doesn't happen again."
Jacobsen, who traveled to Marion to assist staff at the Kansas paper this week, told VOA, "We hope to continue to offer our support both on the ground and from afar to put into place systems and incentives for law enforcement to respect and honor press freedom."
The Marion County Sheriff’s Office has not replied to VOA’s emails requesting comment.
Greensboro case
Groups like the U.S. Press Freedom Tracker are monitoring a range of cases, including one in North Carolina where a court in late July seized a reporter’s notes and imposed a gag order.
The judge in that case said prior restraint was needed to protect confidential information from juvenile court cases. The judge did not respond to VOA’s email and call requesting comment.
Prior restraint is a legal order that prevents publication of materials.
“They’re the quintessential First Amendment violation,” Stern said.
The paper in North Carolina — the News & Record in Greensboro — has requested a hearing to vacate the gag order and unseal and return the reporter’s notes.
Other journalists are facing legal action because the government accidentally gave them too much information.
Take Ben Camacho, a reporter and photo editor with the nonprofit community journalism outlet Knock LA in Los Angeles.
In April, the city sued Camacho to force the return of photos of police officers that were released to him in 2022 as part of a public records request.
The city gave Camacho a flash drive with headshots of 9,310 officers. Undercover officers had been excluded, an accompanying letter said.
An activist group later published the photos, prompting a police union to sue the city to recover the images and prevent further distribution.
In its lawsuit, the union said it had used a broader definition of “undercover” to include officers working in “sensitive assignments” or who might work undercover in the future.
'Far too expansive'
Camacho argues that the LAPD and the city are trying to redefine what constitutes “undercover” to justify the clawback of the records.
Police Chief Michel Moore told VOA that wasn’t accurate.
"The original release was far too expansive,” he said in an email to VOA. “The department recognizes and respects the critical role journalists play in our democracy.”
The Los Angeles City Attorney’s Office said it could not comment on pending litigation.
Camacho is concerned that losing the legal fight will risk setting a precedent.
“It erodes our First Amendment freedoms, our First Amendment rights as the press and as the public,” he told VOA.
Brian Hauss, an attorney with the American Civil Liberties Union’s Speech, Privacy and Technology Project, said that in such cases of accidental releases, “the onus is on the government.”
“If it screws up and releases information that it shouldn’t have, that’s the government’s problem. It’s not the press’ problem,” Hauss told VOA.
To Stern of the Freedom of the Press Foundation, a wider implication is the negative effect on the public.
“The public relies on the press to provide it with information. And when the press is restrained from providing newsworthy information, even temporarily, it’s the public that suffers,” he said.
