Special privilege: Should newsrooms be immune from police search?
Jensen, Dwight
Special privilege: Should newsrooms be immune from police search? Dwight Jensen Police and prosecutors in America have learned that they can obtain search warrants and conduct searches in...
...Once that legal line is drawn we will have de facto licensing of the press, and upon that foundation government can be expected to build a full-scale licensing structure, piece by piece...
...Now the whole matter is in court...
...If the free-press clause is construed as granting extra privileges to journalists, it will draw a legal line between journalists and other citizens...
...KBCI argues that when the First Amendment says, "Congress shall make no law abridging freedom of the press," it means reporters don't have to answer questions in court that other persons would have to answer, that press offices cannot be searched although other offices can be, that the press—unlike, say, a President—is above the law...
...The press can offer magistrates plenty of reasons for declaring searches of newsrooms to be unreasonable...
...In Boise, Idaho, police searched the KBCI-TV newsroom for videotapes of a prison riot...
...The station wants its tapes returned, a declaratory judgment saying the search was illegal, and an injunction against future searches...
...But sooner or later a prosecutor will use the exceptions in the law as a reason for obtaining a search warrant, and the media will once again be trying to keep police out of the newsroom...
...The prosecutor wanted the tapes in order to identify prisoners suspected of kidnapping, arson, and possibly other crimes...
...Dwight Jensen Police and prosecutors in America have learned that they can obtain search warrants and conduct searches in newsrooms, and they have started doing it...
...That weapon is the "reasonableness" test imposed by the Fourth Amendment...
...Dwight Jensen, a free-lance writer in Boise, Idaho, spent thirteen years as a reporter for KBCI's predecessor, KBOl-TV...
...The press arguably provides an opportunity for the public both to collect and to exchange information...
...All who write, whether they are "members of the press" or not, get special protection against searches from a new act of Congress that took effect January 1. It is a law imposing new conditions that must be met before a warrant will be issued to search the rooms or office of any writer...
...Is that.reasonable...
...The station is basing its case on the First Amendment, claiming that reporters and newsgathering organizations have a special privilege to be exempt from certain obligations that others must face...
...Searches endanger the privacy of those papers and, in effect, cause the involuntary publication of the notes...
...No, the Supreme Court has said—and is likely to say again—the First Amendment says no such thing...
...There are court decisions protecting "private papers...
...Limits were imposed on search and seizure in the first place in order to prohibit general searches, fishing expeditions...
...They cannot do that by using the First Amendment...
...The Supreme Court has said "No" to that institutional concept time and again...
...But the press is insisting that it's right...
...The rights guaranteed by the First Amendment belong to everyone, not merely to persons employed by newspapers and broadcasting stations...
...It's time to recognize that fact and find a weapon better suited to the job...
...A press office is likely to contain many private papers and unpublished notes...
...The press and its lawyers should examine these arguments...
...The Supreme Court has ruled (in Richmond Newspapers v. Virginia) that the public has a right to swap information and to gather information to swap...
...And if it did work, it would actually endanger freedom of the press...
...Magistrates have the power to consider such questions and to deny warrants or to attach conditions to them that would protect the press—if the press will ask the magistrates to do so...
...It may even be a haven for some sort of thinking process...
...To what extent is it reasonable to inhibit this exchange by poking into the sources of the information...
...Good arguments can be and have been advanced for considering "unpublished notes" to be part of the "thinking process" and therefore immune from seizure by government...
...A newsroom is likely to be the repository of so many confidential papers and bits of information that any search becomes general, a fishing expedition...
...Newspapers and broadcasters are denouncing the practice, claiming that the First Amendment bars press office searches...
...The argument won't work...
...The television station refused to show the tapes to the prosecutor, so the prosecutor obtained a search warrant...
...The Fourth Amendment says search warrants may be issued only when a "reasonable" case for search and seizure is made to a magistrate...
Vol. 45 • February 1981 • No. 2
