Reporters Committee For Freedom of The Press Letter

By email August 13, 2023
1156 15th St. NW, Suite 1020

Washington, D.C. 20005
(202) 795-9300 • www.rcfp.org Chief of Police Gideon Cody
Bruce D. Brown, Executive Marion Police Department
Director 112 N. Fifth St.
[email protected]
(202) 795-9301 Marion, KS 66861
STEERING COMMITTEE CHAIR
STEPHEN J. ADLER
Re: Newsroom Search of Marion County Record.
EXECUTIVE COMMITTEE
MEMBERS
MARGARET LOW
Dear Chief Cody:
WBUR
MASSIMO CALABRESI
Time Magazine On August 11, 2023, law enforcement officers with the Marion
DAVID BOARDMAN
Temple University
Police Department executed a search warrant at the Marion County Record’s
MANNY GARCIA newsroom and at its publisher’s home, and seized the Record’s electronic
Austin American-Statesman
LAURA HANDMAN
newsgathering equipment, work product, and documentary material.
Davis Wright Tremaine
NORMAN PEARLSTINE
THOMAS C. RUBIN The Reporters Committee for Freedom of the Press (the “Reporters
OpenAI
Committee”) and the undersigned 30 news media and press freedom
STEERING COMMITTEE MEMBERS
WOLF BLITZER organizations write to condemn that raid. Newsroom searches and seizures
CNN
THEODORE J. BOUTROUS, JR.
are among the most intrusive actions law enforcement can take with respect
Gibson, Dunn & Crutcher LLP to the free press, and the most potentially suppressive of free speech by the
LYNETTE CLEMETSON
University of Michigan press and the public.
NIKHIL DEOGUN
Brunswick Group
EMILIO GARCIA-RUIZ Based on public reporting, the search warrant that has been published
San Francisco Chronicle
JOSH GERSTEIN
online, and your public statements to the press, there appears to be no
POLITICO justification for the breadth and intrusiveness of the search—particularly
ALEX GIBNEY
Jigsaw Productions when other investigative steps may have been available—and we are
SUSAN GOLDBERG
GBH
concerned that it may have violated federal law strictly limiting federal,
GAIL GOVE state, and local law enforcement’s ability to conduct newsroom searches.
NBCUniversal
JAMES GRIMALDI We urge you to immediately return the seized material to the Record, to
The Wall Street Journal
purge any records that may already have been accessed, and to initiate a full
DIEGO IBARGÜEN
Hearst independent and transparent review of your Department’s actions.
JEREMY JOJOLA
9NEWS Colorado
KAREN KAISER As detailed in the search warrant, on Friday your Department
Associated Press
KIMBRIELL KELLY executed a warrant at the Record’s offices and at the home of its owner and
The Los Angeles Times
DAVID LAUTER
publisher that authorized the seizure and forensic search of electronic media,
The Los Angeles Times as well as the confiscation of journalistic work product and documentary
COLLEEN MCCAIN NELSON
The McClatchy Company material related to a named individual. See Sherman Smith et al., Police
JAMES NEFF
The Philadelphia Inquirer
Stage ‘Chilling’ Raid on Marion County Newspaper, Seizing Computers,
BRUCE W. SANFORD Records, and Cellphones, Kansas Reflector (Aug. 11, 2023),
BakerHostetler, retired
CHARLIE SAVAGE
https://perma.cc/637N-ZMZC. The predicate crimes listed in the search
The New York Times warrant include identity theft regarding that named individual and K.S.A.
JENNIFER SONDAG
Bloomberg News 21-5839, “unlawful acts concerning computers.” Id. (posting search warrant
NABIHA SYED
The Markup
authorized by Marion County Magistrate Judge Laura Viar). According to
ADAM SYMSON media reporting, the raid followed the Record having received information
The E.W. Scripps Company
MATT THOMPSON from a source, attempting to verify that information through a state website
The New York Times available to the public, and thereafter, alerting your Department out of
VICKIE WALTON-JAMES
NPR
SUSAN ZIRINSKY
CBS News
Affiliations appear only for purposes of

identification.
concern that, according to the owner and publisher of the paper, the paper was being “set
up.” Id.
Your Department’s seizure of this equipment has substantially interfered with the
Record’s First Amendment-protected newsgathering in this instance, and the
Department’s actions risk chilling the free flow of information in the public interest more
broadly, including by dissuading sources from speaking to the Record and other Kansas
news media in the future.
Further, as you acknowledge in your public statement, the federal Privacy

Protection Act of 1980 (the “PPA”) protects that flow of information to journalists by
prohibiting law enforcement, including local agencies, from searching for or seizing
journalistic work product1 or documentary materials, except in narrow, exceptional
circumstances. See Pub. L. No. 96-440, 94 Stat. 1879 (1980), codified at 42 U.S.C. §§
2000aa, 2000aa-5 to 2000aa-7.
As you note, authorities may only search for or seize work product if the
immediate seizure is necessary to prevent the death of, or serious bodily injury to, a
human being, or where there is probable cause to believe that the possessor has
committed or is committing certain crimes. This “suspect exception,” which you cite, is
inapplicable when the relevant conduct consists of the receipt, possession,
communication, or withholding of the material, with only limited exceptions for certain
federal statutes that are not at issue here. 42 U.S.C. § 2000aa(a)(1)-(2).
For documentary material, which it appears was also seized by your Department,2
the PPA adds two additional exceptions that permit its seizure by law enforcement,
neither of which appear to apply here: (1) when notice pursuant to a subpoena would
result in destruction, alteration, or concealment of such materials; or (2) when such
materials have not been produced pursuant to a court order directing compliance with a
subpoena, all appellate remedies have been exhausted, and there is reason to believe that
1
“Work product” is material prepared by the journalist or another in anticipation of
reporting to the public. It is defined as material that is prepared, produced, authored, or
created by any person in anticipation of that material being communicated to the public;
is possessed for the purposes of communicating such materials to the public; and includes
the mental impressions, conclusions, opinions, or theories of the person who created the
material. 42 U.S.C. § 2000aa-7(b).
2
“Documentary materials” means materials upon which information is recorded.
42 U.S.C. § 2000aa-7(a) (listing examples, such as photographs, video, and audio tapes).
Neither documentary materials nor work product materials include contraband; the fruits
of a crime; things otherwise criminally possessed; or property designed or intended for
use as, or which has been used as, the means of committing a criminal offense. 42 U.S.C.
§ 2000a-7(a) and (b). That said, and crucially, it is well-settled First Amendment law that
the possession of material that may have been acquired unlawfully in the first instance by
a source, but where the news organization has not participated in the underlying offense,
is constitutionally protected. Bartnicki v. Vopper, 532 U.S. 514 (2001).
2
delay in an investigation or trial occasioned by further proceedings relating to the
subpoena would threaten the interests of justice. 42 U.S.C. § 2000aa(b)(1)-(4). With
respect to the “interests of justice” exception, the person possessing such materials must
be permitted to submit an affidavit explaining why the materials are not subject to
seizure. 42 U.S.C. § 2000aa(c).
In short, search warrants based on the mere receipt, possession, communication,

or withholding of work product material are virtually always proscribed with only limited
exceptions, and the PPA’s “subpoena first” requirement for documentary material reflects
the law’s design to steer law enforcement to the least intrusive investigative means with
respect to newsrooms. Both help ensure that affected news organizations can negotiate
the scope of a demand or challenge one that is overbroad. Applying these principles to
the search your office conducted of the Record, its sweep—and the related threat to the
Record’s lawful newsgathering and reporting—clearly runs counter to the intent of the
statute, regardless of the asserted predication for the search.
It is also meaningful that the U.S. Department of Justice takes such investigative
steps so seriously that the Attorney General must personally sign off before members of
the department may execute a search warrant for “the premises of a news media entity.”
See Policy Regarding Obtaining Information from or Records of Members of the News
Media; and Regarding Questioning, Arresting, or Charging Members of the News Media,
28 C.F.R. § 50.10(d)(2)(ii) (2022). Notably, that Attorney General authorization
requirement applies even when prosecutors are invoking the suspect exception under the
PPA for search warrants. Id. And, when newsroom searches do occur, they not only
generate broad public outcry but also can result in significant liability for the
municipality and agency. See Thomas Fuller, San Francisco Police Raid on Journalist
Alarms Free Press Advocates, N.Y. Times (May 13, 2019), https://perma.cc/K5AK-
K5CU; Luke Henkaus, San Francisco Expected to Reach $396,000 Settlement with
Journalist Bryan Carmody Over Police Raid, Reporters Comm. for Freedom of the Press
(Mar. 5, 2020), https://perma.cc/AX75-5HVG.
Importantly, the state of Kansas has recognized similar sensitivities with respect
to the compelled disclosure of unpublished information and confidential source identities,
see K.S.A. § 60-480 to 485 (statutory reporter’s privilege), and the U.S. Court of Appeals
for the Tenth Circuit has cautioned, in recognizing a qualified reporter’s privilege in this
jurisdiction, that “any infringement of the First Amendment must be held to a minimum
that it is to be no more extensive than the necessities of the case,” Silkwood v. Kerr-
McGee, 563 F.2d 433, 437 (10th Cir. 1977).
In short, the search warrant directed at the Marion County Record was
significantly overbroad, improperly intrusive, and possibly in violation of federal law.
We urge you to immediately return any seized equipment and records to the newspaper;
purge any such records retained by your Department; and initiate a full, independent, and
transparent review into your Department’s actions.
3
If you have any questions or wish to discuss, contact Reporters Committee
Executive Director Bruce Brown or Gabe Rottman, the director of the Technology and
Press Freedom Project at the Reporters Committee. They can be reached at
[email protected] and [email protected].
Sincerely,
Reporters Committee
for Freedom of the Press
ALM Media, LLC

The Associated Press
The Atlantic Monthly Group LLC
Bloomberg L.P.
Boston Globe Media Partners, LLC
Cable News Network, Inc.
The Center for Investigative Reporting (d/b/a Reveal)
Dow Jones & Company, Inc., publisher of The Wall Street Journal
The E.W. Scripps Company, on behalf of KSHB-TV and KMCI-TV
Gannett Co., Inc.
Hearst Corporation
The Intercept Media, Inc.
Kansas Press Association
Kansas Coalition for Open Government
The McClatchy Company, LLC
Los Angeles Times Communications LLC
National Newspaper Association
National Press Photographers Association
NBCUniversal News Group Inc.
New England Newspaper and Press Association, Inc.
The New York Times Company
The New Yorker
The News Leaders Association
News/Media Alliance
Pro Publica, Inc.
Radio Television Digital News Association
Reuters News & Media Inc.
Society of Professional Journalists
TEGNA Inc.
The Washington Post
cc: Reporters Committee for Freedom of the Press Steering Committee

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By email August 13, 2023

1156 15th St. NW, Suite 1020

Affiliations appear only for purposes of

Further, as you acknowledge in your public statement, the federal Privacy

In short, search warrants based on the mere receipt, possession, communication,

ALM Media, LLC

cc: Reporters Committee for Freedom of the Press Steering Committee

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