This federal law protects journalists from raids like the one in Marion, Kansas | Opinion

In the wake of the recent police raid on a newspaper in Marion, Kansas, perhaps a quick review of federal law is in order.

Congress passed the Privacy Protection Act of 1980 to protect journalists in the wake of the U.S. Supreme Court’s 1978 decision in Zurcher v. Stanford Daily. In that case, the student newspaper of California’s Stanford University published a staff member’s photographs of a demonstration that got out of hand. Zurcher was the city’s chief of police.

Student demonstrators had occupied the administrative offices of Stanford University Hospital, barricading the adjacent hall at both ends. When police tried to forcibly enter from the west, students armed with clubs attacked nine policemen stationed at the east end. All nine officers were hurt.

Most reporters had been at the west end, but one Stanford Daily photographer had been at the east. After the paper published the pictures, four policemen, armed with a search warrant, created chaos as they dumped wastebaskets and rifled through the paper’s photo lab, desks and filing cabinets. They sought photographs, negatives and film, but left empty-handed because their search turned up only pictures that the paper had already published.

The newspaper and its staff members sued, claiming violation of their rights under the First and Fourth Amendments. The Supreme Court upheld the search.

Journalists nationwide were appalled. In the wake of Zurcher v. Stanford Daily, Congress passed the Privacy Protection Act of 1980. Lawmakers thus gave journalists a form of privacy protection denied to them by the Supreme Court.

This legislatively bestowed protection means nothing, however, if journalists and the authorities are not aware of the law.

This law clearly applies to federal, state and local authorities. Quite simply, the law generally forbids officers from performing a knock-and-enter search of a newsroom with a search warrant. This law also applies to motel rooms and elsewhere if a journalist has set up his or her news operations there. Under the law, an officer can only search a news office with a search warrant if 1) probable cause exists to believe the reporter was involved in the crime, 2) there is danger of bodily harm or loss of life, or 3) there is danger the material will be destroyed. Otherwise, the police have to get a subpoena duces tecum — a subpoena for documents — that requires the journalist to produce the specified material at a designated time and place.

From a journalist’s point of view, subpoenas have two major benefits as compared with search warrants. First, a subpoena does not permit police to search newsrooms, thus safeguarding privacy and avoiding disruption of news operations. Second, the subpoena process provides an opportunity for a legal challenge to the propriety of surrendering information before the reporter turns over information. If a journalist’s challenge is unsuccessful and he or she fails to respond to the subpoena, then authorities do have a fourth ground under the act upon which to obtain a search warrant: failure of the journalist to respond to the subpoena.

The Privacy Protection Act also allows journalists to collect damages. The legislation says that a “person aggrieved” by a search or seizure in violation of the act may sue and collect damages of “not less” than $1,000 plus “reasonable attorney’s fees” and other reasonable “litigation costs.” The suit may be brought “against the United States, against a state which has waived its sovereign immunity … or against any other governmental unit, all of which shall be liable for violations of this act by their officers or employees.” (Note that law enforcement does have a “good faith” defense, but the government does not.)

News organizations’ claims of damages may be hard to prove

In some cases, it may be hard to prove that a news organization has suffered any actual damages. Perhaps, in fact, the authorities have only confiscated the materials they wanted and have left everything else undisturbed. For such cases, the act provides for “liquidated damages” of “not less” than $1,000.

Perhaps more important for journalists than the minimum $1,000 in damage awards, however, is the possibility of recovering “reasonable attorneys’ fees” and court costs if the journalists prevail. The case of Minneapolis Star & Tribune Co. v. United States (1989) is one example:

In Minneapolis on Dec. 22, 1986, one journalist was taking photographs and another was making a videotape from the sidewalk and parking lot in front of a convenience store as agents from the Federal Bureau of Investigation were making arrests for narcotics inside the store. One of the agents demanded the journalists’ film and tape and threatened to jail them if they failed to comply. Undercover agents were making the arrest, he said. In response, the journalist doing the videotaping offered to edit the tape. But the agent confiscated the journalists’ film, tape and equipment.

Three hours later, the journalists’ property was returned to them. The television station met its deadline to air the tape on its nightly news, and the newspaper ultimately decided that the photographs were not newsworthy enough to publish. In short, the news organizations did not sustain provable damages, but a federal court awarded them the minimum liquidated damages and, ultimately, a total of $80,243 in attorneys’ fees and court costs.

Fortunately for journalists, Congress can grant them greater rights than they possess under the First Amendment — but unfortunately, there can be a wide gulf between having rights and exercising them. And so it is with journalists’ right to be spared knock-and-enter searches. Journalists must know the law and try to protect themselves from illegal searches.

The Privacy Protection Act gives special protection to journalists. This law is outside the routine for most prosecutors and judges, who are accustomed to just doing business as usual. That is why journalists may literally have to inform the police, prosecutor and judge of the existence of this special safeguard they have when they are functioning as a journalist.

Journalists should keep a copy of the Privacy Protection Act in their newsrooms — just in case.

Attorney Sandy Davidson is a retired media law professor at the University of Missouri.