Marion County Record Newspaper Raid Should Concern Us All

There was “insufficient evidence” to justify a police raid Aug. 11 on the Marion County Record, a small newspaper in Kansas, and the home of its co-owner, a Kansas county attorney said Wednesday – echoing officially what the Record and more than 30 journalism groups said days earlier.

The newspaper was raided Friday by all five officers of the town’s police force based on a search warrant that has since been withdrawn, raising a storm over how and when police can do that.

Apart from real questions and genuine emotions surrounding a police raid of this or any newsroom, what was the core First Amendment issue here?

What happened at the Marion County Record? 

• Police raided a small newsroom in Marion, Kan., on Aug. 11, seizing equipment from the office and the home of its co-owners. 
• The raid was sparked by a claim that the newspaper illegally obtained information about a local restaurateur’s driving arrest. The newspaper reported the information to police as having suspicious origins and later published the information after the restaurateur stated it publicly.
• Press freedom organizations say the raid violates the essence of freedom of the press.
• The search warrant has since been withdrawn and the seized items returned.

Simply put, any remaining issues likely will rest on how the newspaper obtained information about a local restaurant owner’s driving record.

While police initially said they acted properly to investigate a possible crime in obtaining that record, more than 30 journalism and First Amendment organizations have criticized the raid, saying that there “appears to be no justification for the breadth and intrusiveness of the search.”

County attorney Joel Ensey weighed into the controversy Wednesday, saying his review found “insufficient evidence to establish a legally sufficient nexus between this alleged crime and the places searched and the items seized.” He has asked that police return the seized material. 

Five local police officers and two sheriff’s deputies had seized computers and cell phones, photographed bank statements, and took other records and items at both the newspaper’s office and the co-owner’s home, the County Record reported. The officers had a search warrant issued by a local magistrate citing possible “identify theft” and “unlawful acts concerning computers.” This warrant was later withdrawn, but the Kansas Bureau of Investigations is still looking at whether a Record reporter committed any crimes.

What legal protections do newsrooms have from law enforcement action?

The federal Privacy Protection Act of 1980 generally protects a free press from such raids and seizure of information and equipment

The act came about when Congress – with prompting from then-President Jimmy Carter – reacted to the 1978 U.S. Supreme Court case Zurcher v. Stanford Daily, involving a police search of the Stanford University student newspaper. The paper lost its challenge to the search, but Carter warned the decision threatened the "effective functioning of our free press," and that the nation needed “new, stringent safeguards against federal, state and local governmental intrusion into First Amendment activities."

When can newsrooms be searched and/or journalists’ materials seized by law enforcement?

The Privacy Protection Act allows this when there is a warrant AND one or more of the following conditions are met:  

• There is probable cause to believe that the reporter committed a crime. 
• The seizure of materials is necessary to prevent injury or death.  
• The materials contain national security or classified information.  
• If the search warrant seeks “documentary materials” that could be destroyed like photos, videos or notes, then the search and/or seizure can also be based on two additional circumstances:  
  • The journalist ignored a subpoena. 
  • There is a likelihood that the journalist would destroy the info if subpoenaed.

In obtaining the search warrant, Marion police reportedly relied on the first circumstance identified in the act, claiming they had reason to believe the paper had direct involvement in illegally obtaining confidential information. However, the newspaper says it initially was given the driving record information by an unnamed source. If that is the case – and the newspaper did nothing illegal to obtain the information from that source – then the 2001 Supreme Court case Bartnicki v. Vopper says the newspaper is protected from criminal liability under the First Amendment, and this exception to the Privacy Protection Act falls away.

What other protections does the First Amendment provide newsrooms? 

Typically, under federal law and, more recently, U.S. Department of Justice guidelines, authorities will seek a subpoena rather than moving directly to a search warrant and subsequent raid. This gives a news outlet or journalist an opportunity to respond in court.

Current interpretations of First Amendment press freedom also protect us from government control of what we decide to do with information we simply receive, no matter how someone else obtained it — as long as it involves “a matter of public importance.”

What do the County Record and other journalists say about the case? 

Coincidentally here, the County Record says it didn’t publish the driving record based on the information from the unnamed source. The driving record was printed in a later news story about a city council meeting where the restaurant owner herself disclosed it.

On Monday, Bernie Rhodes, a lawyer representing the newspaper, said in a letter to Marion Police Department Chief Gideon Cody that Kansas’ journalists shield law provides for a court hearing before police can access seized information. He also told the police chief, “Your personal decision to treat the local newspaper as a drug cartel or a street gang offends the constitutional protections the Founding Fathers gave the free press.”  

In an Aug. 13 letter, the Reporters Committee for Freedom of the Press wrote that such searches “are among the most intrusive actions law enforcement can take” involving a free press and “the most potentially suppressive of free speech by the press and public.”

Tragically, the story doesn’t just involve constitutional concerns. County Record publisher and co-owner Eric Meyer says his mother Joan Meyer, 98, the other co-owner, died Saturday after telling him she was stressed by the raid on her home.

Meyer also said he believes the raid had more to do with his newspaper looking into the employment record of police Chief Cody – hired in April after serving 24 years on the Kansas City Missouri Police Department – rather than the alleged driving record information violation.

Why is this an important press freedom case?

The First Amendment protection for newsgathering is not absolute. But even exceptions to that protection recognize that unrestrained intrusion into newsrooms by the government can do great harm, from chilling accountability reporting, to frightening potential news sources or whistleblowers, to – as in the case here – seizing equipment that limits a news outlet’s very ability to publish, post or broadcast.

The Record could now seek damages as a result of the raid.

But a longer-lasting remedy is to, as the First Amendment provides, let the court of public opinion, not a court of law, judge the newspaper’s motives and performance. 

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum. He can be reached at [email protected].