Does The Breeze have a case?

Story by Chris Graham
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Katie Thisdell felt that she had no choice but to turn over to Harrisonburg police and Commonwealth’s Attorney Marsha Garst several hundred photos shot by staffers at The Breeze at the April 10 block party that turned into a clash between partygoers and local law enforcement.

Garst had a search warrant and was threatening to take all the computers, cameras, documents and even cell phones if needed from the newsroom per her search warrant.

“There was no way I was going to watch them walk out with everything. We wouldn’t be able to put out the paper. That’s what I was thinking at that moment,” said Thisdell, a junior at James Madison University who became managing editor of The Breeze, a student-run campus newspaper, on April 1.

The heavy-handed tactics employed by Garst and local police has stirred editorial outrage from coast to coast. But the issue of whether or not Garst was acting outside the bounds of what is allowed is still somewhat at question.

At first glance, there appears to be no question that the Privacy Protection Act of 1980 provides protection to media organizations from most newsroom searches and seizures. The law was passed as a response to a controversial 1978 United States Supreme Court decision in a case similarly constructed as the matter involving The Breeze.

The student paper at Stanford had published staff photos of a clash between student demonstrators and police, and in the aftermath of the incident the local police said they could only identify two of the students involved in the melee. The police department obtained a search warrant for photos taken by the staff as well as negatives and other film associated with the incident. In a 5-3 decision, the Supreme Court ruled in the case, styled Zurcher v. Stanford Daily, that the search had been valid and constitutional, with Justice Byron White writing in the majority opinion that police could conduct a search of an individual who was not a suspect in a criminal investigation as long as they had a reasonable belief that the materials to be seized were at the location targeted for search.

The PPA, passed two years after Zurcher, provides protections for news organizations from searches and seizures in the matter of criminal investigations and also sets out recourse for civil remedies in cases involving violations of the federal law. David Hudson, a First Amendment scholar at the First Amendment Center at Vanderbilt University, thinks The Breeze has a “good PPA argument.”

“The press is not to be the mere handmaiden of the state. It’s not their job to be law enforcement. It’s their job to simply report, to inform the public. They’re not a governmental investigatory arm. If anything, they’re supposed to investigate and monitor the government, not be a quasi-arm of the government,” Hudson said.

“This is an attempt to conscript the Fourth Estate and force them to do the government’s work, basically. Which I think is an abuse of power,” Hudson said.

But the PPA has not been held to constitutional scrutiny by the Supreme Court, notes Robert O’Neil, the executive director of the Thomas Jefferson Center for the Protection of Free Expression and a First Amendment scholar at the University of Virginia School of Law.

“Over time, many courts have in fact protected journalists and researchers on no-constitutional grounds, noting the availability of alternative means, the risk for invasion of sensitive relations between journalist and source, and the practical burden of compliance. Curiously, however, despite the statutory fix that followed the Stanford Daily case at the federal level – and many concordant state laws – the issue that arose in Harrisonburg last week seems to have arisen quite infrequently, and with mixed results,” O’Neil said.

An action challenging the action of authorities in a case like the one involving The Breeze, then, would be made “without certainty in view of the rejection of both constitutional claims in the 1970s,” O’Neil said.

That uncertainty as to what the law of the land really is on this could explain the ongoing negotiations between The Breeze and the Commonwealth’s attorney office. In the end, litigation that snakes its way to the Supreme Court for a final resolution is time-consuming and almost prohibitively expensive as a result. It took seven years, for instance, for the Zurcher case to reach the Supreme Court.

The back-and-forth on this right now is on the public-relations front. The outpouring of support from news organizations across the country has The Breeze ahead on that card by a wide margin.

“It’s been great to see so much support,” Thisdell said. “It’s been really cool to see, that, yeah, I think I did make the right decision. You never know what the final outcome of a decision is going to be. I thought I was right, but you really never know. So to have so many other people, professional journalist organizations, say, Yeah, what you did was right, it’s really meant a lot.”