COLUMN: Is the Trump Administration Ignoring Laws Protecting the Press?

On April 8, 1971, individuals protesting the firing of a Stanford University Hospital employee seized and occupied the administrative offices of the hospital, demanding that the employee be re-hired and that the hospital undertake other reforms regarding hiring of minority employees. The next day, after negotiations with the protestors reached an impasse, the police were called in to clear the sit-in. In the end, there were 23 arrests. Twelve of the protestors and 13 police officers were injured, with two of the officers seriously injured.

The Stanford Daily, the student newspaper at the university, published a special edition on April 11 focusing on the incident that included photographs of the encounter between the protestors and police, taken by a Stanford Daily photographer on the scene. The next day, the Palo Alto police obtained and executed a search warrant on the newspaper’s office, seeking photographs and photo negatives that could identify protestors who assaulted police.

The Daily and some of its staff members then sued, alleging that the police search violated their rights under the First (freedom of speech and the press), Fourth (appropriate searches) and Fourteenth (applies constitutional rights to the states) Amendments of the United States Constitution. Eventually the U.S. Supreme Court held in a five-three ruling that the police search was not improper. In particular, the Court held that the First Amendment does not bar the police from searching newsrooms for relevant evidence.

In response to this decision Congress passed and President Jimmy Carter signed the Privacy Protection Act, which generally protects reporters and news organizations from similar searches. Essentially the law says the investigators seeking information and evidence from news organizations should use subpoenas—which are conveyed in writing and give targets a chance to challenge them in court—rather than search warrants—which the target often finds out about only when the police show up—to obtain evidence for the news organizations’ or reporters’ files, in most cases. (The major exemption is when the reporter or new organization is suspected of criminal activity.)

In addition to the statute, the policy is enshrined in Justice Department regulations.

But this law has often been ignored, with police agencies using search warrants as a first resort rather than a last one. Examples: here, here and here.

During the Biden administration, then-Attorney General Merrick Garland further pledged that federal prosecutors would not search journalists’ phones or email contacts to investigate national security leaks, after several incidents during the first Trump administration.

In January, FBI agents searched the home of Washington Post reporter Hannah Natanson and seized two laptops, her phone and other electronic devices. The search is reportedly related to an investigation of a Maryland government contractor accused of mishandling classified intelligence reports. (A judge has blocked the government from accessing the devices.) The DOJ did not mention either the Privacy Protection Act or the DOJ regulation in the legal papers it submitted to obtain the warrant to search Natanson’s home.

And this April then-Attorney General Pam Bondi rescinded Garland’s DOJ policy. After Bondi left her position, in May acting Attorney General Todd Blanche said that reporters “should not be surprised” to receive subpoenas in leak cases.

In early June, the Reporters Committee for Freedom of the Press sued the Department of Justice and Immigration and Customs Enforcement for their failure to respond to a federal Freedom of Information Act request for emails and other communication regarding the arrests of journalists Don Lemon, Georgia Fort and Shane Bollman, who were charged with violating federal law in their reporting on a protest inside a Minnesota church in January.

The Reporters Committee says that the FOIA request is to determine whether the investigations and arrests violated the Privacy Protection Act and/or the DOJ regulations.

The lawsuit and history of the Act show that it is one thing to have protections for the media fixed by statute, but it may be another to make sure that it is actually followed.

Contempt Ruling Still Pending for SC Reporter

The question of whether journalist and podcaster Mandy Matney should be held in contempt for failing to appear at a March 27 deposition in a case stemming from the 2019 death of Mallory Beach does not appear to have been decided after a May 15 hearing on the matter.

Matney was subpoenaed in a lawsuit brought by Beach’s family against convenience store owner Greg Parker over his vigorous defense of an earlier wrongful death lawsuit brought by the Beach family against his company. Beach died when the boat in which she was riding—piloted by Paul Murdaugh, who was later found dead, with his father Alex Murdaugh convicted of the murder (a conviction that was overturned and is awaiting retrial)—hit the pilings of a bridge in Beaufort.

The deposition was regarding the leak of a video produced for the mediation in the original lawsuit against Parker’s company. The video included police photos of Beach’s body.

Matney has said that she failed to appear at the March 27 deposition because she felt unsafe at the scheduled location. At the May 15 hearing Matney said that she did not release the photos.

Eric P. Robinson is the Reid H. Montgomery Chair in Freedom of Information at the University of South Carolina’s School of Journalism and Mass Communications, where he teaches media and internet law as an associate professor at the USC School of Journalism and Mass Communication, and an academic affiliate of USC’s Joseph F. Rice School of Law. He is “of counsel” at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 30 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.