Reno newsroom raid reveals little-known press law

Tuesday, January 19, 1999

When the Reno, Nev., district attorney recently attempted to search the newsrooms of three television stations and a newspaper, it came as little surprise that journalists nationwide denounced the move as an oppressive government action.

But the news outlets' defense — a little-known, little-used law called the First Amendment Privacy Protection Act — left many scratching their heads.

The citation of the law by Las Vegas attorney Kevin Doty in published reports surprised press advocates, many of whom could scarcely recall the 19-year-old federal law which gives reporters protection from government search and seizure.

“It is too little noticed,” said Paul McMasters, The Freedom Forum's First Amendment ombudsman. “Too few people know about this, and what is worse, too few editors and reporters know it.”

Generally, the act forbids government officials from searching for or seizing a reporter's “work product materials” unless the reporter is suspected of committing a crime or “there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.”

Congress passed the act in 1980 in response to the 1978 U.S. Supreme Court decision in , a 5-3 ruling that said the Palo Alto, Calif., Police Department had legally searched the Stanford Daily after a 1971 demonstration.

In that case, the police secured a search warrant after learning that a Daily reporter and photographer had covered the demonstration at the Stanford University Hospital, a protest that injured nine officers. Police used the photos to identify their assailants.

The student newspaper sued the police and secured a favorable ruling in federal district court, saying police officers didn't have probable cause to search the newspaper. The Supreme Court's decision reversed the ruling.

Barbara Cochran, president of the Radio-Television News Directors Association, said law enforcement's use of search warrants quickly disappeared after passage of the 1980 federal law. But Cochran said that she fears the pendulum may be swinging back.

Cochran notes that recent years have seen a considerable rise in the number of subpoenas imposed on newsrooms for reporters' notes, outtakes and other materials.

Within the past few months:

  • Authorities in Georgia have demanded a reporter answer questions about the mental state of an inmate he interviewed.
  • A former newspaper reporter in California faces a five-day jail sentence for refusing to reveal confidential sources before a grand jury, despite the fact that prosecutors were able to obtain a 23-count indictment without his testimony.
  • A North Carolina trial judge has ordered a reporter to reveal his sources concerning a secret settlement between an oil company and residents of a contaminated neighborhood.

“Nineteen years later, there is a whole upsurge in the number of subpoenas issued against newsrooms,” Cochran said. “So it's not surprising that someone would take it into his head that a warrant might work, too.”

Despite the apparent increase in subpoenas, Cochran and other press advocates say news editors generally know how to handle them.

“Newsrooms are generally used to confronting a subpoena,” Cochran said. “But it's a very unusual occurrence for law enforcement to go in with a warrant. Maybe that's why this law is not as widely known. Most reporters and editors know shield laws. They know what to do about subpoenas.”

But they aren't so sure about warrants.

In the Reno case, District Attorney Richard Gammick said he needed the reporters' notes and tapes because sheriff's deputies didn't take notes or tape the interview several reporters had with a shooting suspect. Although they were present, the deputies did not document the suspect's comments when he said he intended to kill his victims during a shooting spree along Interstate 80 near Reno. (Earlier reports said the police had videotaped the confession, but they apparently had not.)

Cochran noted that the three Reno television stations all responded differently. One station handed its tape over to the district attorney, along with a warning that legal action might follow. Another gave a copy of the tape to its attorney, while the third gave its tape to a judge.

To aid broadcast news directors, the RTNDA posted a guide last week explaining the appropriate reaction if served with a warrant by law enforcement.

“It's nice to know that there are laws on the books that control what the government can or cannot do,” said Steve Geimann, the ethics chairman for the Society of Professional Journalists. “But those of us who treasure free speech and free press look to the 45 words of the First Amendment for protection. You shouldn't need to have other legislation on the books nor should you have to fight government when they take clearly illegal, unannounced raids on newsrooms.”

Cochran said she hoped the Reno situation educated news editors about search warrants and the First Amendment Privacy Protection Act.

“But I hope it is also a lesson to law enforcement not to go into newsrooms with a search warrant,” she said.