Police raids on the home and office of a San Francisco reporter have sparked a debate over press freedoms, and led to calls for the resignation of the city’s police chief.
The raids, which occurred on May 10, were the result of a police report leaked to freelance journalist Bryan Carmody. The reporter was kept in handcuffs for more than five hours as police seized his cellphones, flash drives, cameras and computers.
The leaked report concerned the death in February of the city's public defender, Jeff Adachi, a frequent critic of the San Francisco Police Department. An autopsy found that Adachi's death at age 59 was caused by cocaine and alcohol, aggravating a heart condition. The report allegedly contained salacious details of Adachi's last hours.
Police Chief Bill Scott initially defended the raids, which were conducted under several warrants, and accused Carmody of involvement in a conspiracy to steal the report. But in a statement dated May 24, Scott apologized and questioned whether his department’s investigators had appropriately considered “Mr. Carmody’s status as a member of the news media.”
Scott called for an independent investigation into the raids and release of the report.
The San Francisco Police Officers Association has called for Scott’s resignation, while two key officials on the police commission have backed the chief and praised his performance.
Reporters enjoy newsgathering protections under the First Amendment of the U.S. Constitution. Forty states, including California, provide additional safeguards through so-called shield laws, which allow reporters to protect their sources. All states except Wyoming offer some protections for journalists under state law.
At issue in this case is "reporter’s privilege" — the idea that a journalist’s communications with confidential sources should be protected to safeguard the free flow of information in a democracy.
Some reject the notion, and say reporters should be subject to subpoenas and search warrants like everyone else.
Free Speech vs. Protecting Sources
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances - First Amendment, U.S. Constitution
The Constitution does not explicitly assert a special privilege for reporters to protect their sources. In fact, many reporters have been subpoenaed, and dozens have served jail time for violating court orders.
Former New York Times reporter Judith Miller spent 85 days in prison in 2005 for refusing to testify about a national security leak. James Risen, also formerly of the Times, waged a seven-year battle against the George W. Bush and Obama administrations for refusing to name a confidential source in a leak of national intelligence information. The government eventually dropped its efforts against him.
“Reporters are really vulnerable being forced to disclose sources” based on federal law, said Genevieve Lakier, a specialist in First Amendment law at the University of Chicago. “That’s why there are so many state shield laws.”
The search and seizure of the reporter’s property “goes against the core protections for press freedom in this country…that journalists need to be able to protect their sources and...do news gathering without fear that they’re going to be handcuffed,” said Alexandra Ellerbeck of the Committee to Protect Journalists, an advocacy organization.
Courts Offer Some Protections
The U.S. Supreme Court created a template for the protection of news sources in Branzburg v. Hayes, the 1972 case involving Kentucky reporter Paul Branzburg, who refused to testify to a grand jury to protect his sources for stories on illicit drugs.
The court ruled 5-4 against special immunity or privilege for reporters, but a concurring opinion from Justice Lewis Powell left open the possibility of a press privilege in the future.
“The asserted claim to privilege,” Powell wrote, “should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” He called for a balancing of competing interests on a “case-by-case basis,” and lower courts have used his comments in affirming press privilege.
The federal Privacy Protection Act of 1980 provided further media protections, restricting the ability of authorities to seize materials from newsrooms.
Key Question: Who is a Journalist?
Jim Wheaton, founder and senior counsel at the First Amendment Project, a public interest law firm in Oakland, California, said Carmody was clearly covered by the California shield law, which says reporters “cannot be adjudged in contempt…for refusing to disclose the source of any information.”
Unlike many countries, government credentials are not required to work as a journalist in the United States.
Many First Amendment advocates say web-based bloggers and internet reporters are also covered, although the application of shield laws to online news sites has yet to be tested in court.
Then-Supreme Court Justice Byron White wrote in the majority opinion in the Branzburg case, saying if a privilege were recognized, “sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege.” That would be "a questionable procedure," he said.
In the decades since the ruling, the Supreme Court has avoided the issue, Lakier said.
Press advocates boast that the United States has the strongest protections for journalists in the world. But Lakier said, “When it comes to national security interests, when it comes to the government’s investigative powers, the court has been very unwilling to use the First Amendment shield. And so, reporters are very vulnerable.”
Lakier noted that the record is more mixed in civil and criminal cases.
The press advocacy group Reporters Without Borders ranks the United States 48th on its index of press freedom, citing as problems the “anti-press rhetoric” of high-level U.S. officials, including President Donald Trump, physical attacks on reporters, prosecution of whistleblowers under the Espionage Act; and searches of journalists’ files at border crossings.
Opponents of press privilege say the framers of the U.S. Constitution never intended to create a protected class of citizens, but others say the protection of reporters and their confidential sources is in the public interest.
Is a Federal Shield Law Needed?
Lakier says it may now be time for a federal shield law, something, she says, that has never found enough support in the past, but which could strengthen and clarify the patchwork of protections offered by the Constitution and state shield laws.
Wheaton agrees that a federal shield law could safeguard journalism, but worries that it might be ineffective if it leaves exceptions on issues of national security, as many proposals have done in the past.
That was not an issue in the Carmody case, but is a factor with many stories based on leaks in Washington, which is the focus of many First Amendment cases.