The Supreme Court has held that nothing in the Constitution prevents police from raiding newsrooms if they have a valid search warrant (see Zurcher v. Stanford Daily ). The Court rejected arguments by major news organizations that such searches threaten freedom of the press. In dissent, Justice Stewart, joined by Justice Marshall, argued that the press clause of the First Amendment precluded such searches unless there is reason to believe the news organization would not produce the evidence in response to a valid subpoena. Justice Stevens argued that the Fourth Amendment precluded such searches not just of newsrooms, but of premises of all third parties not themselves suspected of crime, unless it was shown that a subpoena would be impractical. But the majority said that the Fourth Amendment applies no differently to third parties than to suspects, and argued that the usual requirement that search warrants be issued only by a magistrate after a showing of probable clause was sufficient to protect against any special dangers to the press arising from newsroom searches.
The decision caused consternation throughout the news industry. Editors and news directors feared that newsroom searches might become a vehicle for disruption and harassment by police and prosecutors. More importantly, they feared that searches would compromise their ability to protect the confidentiality of sources. Because the search warrant procedure provides no opportunity for an advance hearing, journalists argued that confidences could be breached before they have an opportunity to invoke the protections provided by shield statutes or the emerging First Amendment privilege to protect reporter’s sources.
The media outcry over the Zurcher decision led Congress to limit newsroom searches by passing the Privacy Protection Act of 1980, 42 U.S.C., Section 2000aa. The statute forbids any official, federal or state, from searching for or seizing ‘‘material possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication....’’ There are some exceptions. The statute does not apply if the person in possession of the materials is a suspect in the offense to which the materials relate, or to evidence necessary to prevent death or serious injury. Materials other than work product may be seized to prevent the material from being destroyed, or if the possessor has failed to turn them over in obedience to a subpoena after exhausting all appeals.
A number of states also passed statutes restricting newsroom searches. These may limit searches by state and local officials even more than the federal statute does. For example, the Texas statute forbids all newsroom searches except for weapons, drugs, or other contraband (see Texas Code Criminal Procedures, Section 18.02).
Since the passage of these statutes, newsrooms searches have been infrequent, and the organizations whose premises were searched have sometimes won lawsuits against the searchers (see, for example, Steve Jackson Games, Inc. v. United States Secret Service [W.D.Tex. 1993], aff’d 36 F.3d 457 [5th Cir. 1994].
DAVID A. ANDERSON
References and Further Reading
Cases and Statutes Cited