"The functionaries of every government have propensities to command at will the liberty and property of their constituents. There is no safe deposit for these but with the people themselves, nor can they be safe with them without information. Where the press is free, and every man able to read, all is safe."
Those are Thomas Jefferson's words.
Last week, at a college named after Jefferson's friend James Madison, some government functionaries commanded property belonging to a small outpost of the press. A commonwealth's attorney appeared at the offices of The Breeze, James Madison University's student newspaper. According to news reports, a half dozen police officers came into the office with her. More waited outside. The attorney had a warrant to search the office for photos of the recent Springfest riots.
There are so many things wrong with this it's hard to know where to begin.
Federal law declares, "... it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials 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."
Some say that shouldn't apply to The Breeze. It's just a student newspaper. But The Breeze, like The Cavalier Daily, is the newspaper for a pretty well-defined community. And there's no distinction in the law, so far as I know, that separates college newspapers from any other kind.
Some people commenting online have suggested it's not a big deal because photos and videos recording the riots are all over the Web. Actually, that's another argument against the seizure. In an online report from The Breeze, Roger Soenksen, a media arts and design professor and the paper's legal consultant, said one of the exceptions to the Privacy Protection Act allows information to be seized if there is no other source. Clearly, there are lots of other sources in this case. The police even took videos of their own.
But it's not clear what alleged justification for the search and seizure convinced a judge to issue the search warrant
"We don't know which exceptions they're using because the affidavit is sealed," Soenksen said in The Breeze.
According to the paper, police and the commonwealth's attorney seized "926 photos, 682 of which were of the riots."
All the reports I've seen about this say the warrant was for photos of the riot, so there's no clear explanation for seizing the other 244 images. Calls and e-mails from a number of media outlets to the commonwealth's attorney have so far been ignored.
So here's what seems to have happened:
Someone from the commonwealth's attorney's office called The Breeze last Thursday, asking for the photos. But The Breeze has, as most papers do, a policy of sharing with authorities only what's been published. What often happens at this point is that lawyers get involved and compromises are reached so that the state gets more or less what it needs and the paper more or less keeps its independence.
In this case, a government functionary showed up with armed officers demanding the photos. The paper's editor-in-chief asked that the government give the paper an opportunity to argue against the seizure, as the federal Privacy Protection Act requires. The commonwealth's attorney ignored the law and threatened to take all the paper's computers, cameras, other equipment and documents. The editor decided to give in.
The Student Press Law Center, which gives legal advice to student journalists, has taken an interest in the case. Frank D. LoMonte, the non-profit's executive director, has called the commonwealth's attorney's tactics, "a clear attempt to intimidate journalists into giving up their rights. The threat to coerce the students and shut down the newsroom is completely out of bounds."
In The Richmond Times-Dispatch, he said it this way: "To intimidate student journalists with a massive show of force and with no time to consult with legal counsel is grossly improper."
In a Washington Post online report, he said, "This isn't an ongoing hostage situation. We're talking about, essentially, a drunken fistfight that's in the past. This is one of the more outrageous cases I have seen lately."
It is outrageous. To say this is how government should pursue criminals is to say the end justifies the means and this is not a nation of laws.
"It's not our responsibility as journalists to provide this information to the police," Katie Thisdell, editor-in-chief of The Breeze, told The Washington Post.
She's right. One of the most basic reasons to have a press is to keep an eye on the government. That's impossible if the press is just another appendage on the long arm of the law.
Tim Thornton is The Cavalier Daily's ombudsman. His column appears on Monday.
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