Justice Dept.'s Media Investigation Policy Falls Flat Compared to Other Protections Against Press Intrusion

As has been widely reported, the U.S. Department of Justice has disclosed that it has obtained two months' worth of telephone records from 20 separate phone lines assigned to the journalists and offices of the Associated Press. The Associated Press was not informed of the investigation before the DOJ acquired the telephone data, which could potentially reveal confidential sources and editorial strategy (among other sensitive information). The incident has resulted in widespread condemnation of the DOJ's actions by the press and demands for accountability and reform. In response, the DOJ has asserted its commitment to abiding by applicable law and its internal policies, which require special consideration before information may be sought from members of the news media.

This is not the first time that a government investigation into a news organization's operations has led to questions about the sufficiency of protection for the press, and in fact the effects of one prior incident in particular can be seen in these recent events. Examining this incident and its consequences provides a useful lens through which to examine the breadth and limitations of government power to investigate the press.

The First Amendment and the Fourth: Zurcher v. Stanford Daily

On April 12, 1971, four police officers conducted a search of the offices of the Stanford Daily, a student newspaper published at Stanford University. The search, which was conducted pursuant to a court-ordered warrant, was related to an investigation into a disturbance on April 9, during which a group of demonstrators seized the administrative offices of the Stanford University Hospital and engaged in a physical confrontation with police. The Santa Clara County District Attorney's Office asserted probable cause to believe that the Stanford Daily might have negatives, film, and/or images of the disturbance that would assist in the identification of the protesters.

The Stanford Daily filed a civil rights action under 42 U.S.C. § 1983, asserting that the search was unconstitutional. In particular, the newspaper asserted that issuing search warrants for news organizations posed multiple threats to newsgathering, including: (1) physical disruption of the timely newsgathering and publication process; (2) chilling of confidential sources and denial of press access to restricted events; (3) deterrence of note taking and other creation of work product by reporters; (4) exposure of internal editorial decision-making to government scrutiny; and (5) self-censorship by the press to conceal the possession of information of potential interest to law enforcement. Accordingly, the newspaper argued that the First Amendment required different procedures and a higher standard to be met for the issuance of a warrant to search the records of a news organization than is ordinarily required by the Fourth Amendment.

The federal district court agreed, holding that a warrant could not be issued for materials in the possession of a newspaper not itself suspected of being involved in a crime, unless:

• it is established by affidavit would be "impracticable" to request the materials from the newspaper directly via subpoena;
• there is reason to believe that the newspaper would disregard a court order not to remove or destroy the materials sought;
• there is a clear showing that important materials will be destroyed or removed from the jurisdiction; and
• a restraining order would be futile.

The U.S. Court of Appeals for the Ninth Circuit affirmed the district court's ruling, but in Zurcher v. Stanford Daily, 436 U.S. 547 (1978) the U.S. Supreme Court reversed, holding that sufficient protections for First Amendment interests were built into the Fourth Amendment standard for issuance of a warrant:

[P]rior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search. As we see it, no more than this is required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant - probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness - should afford sufficient protection against the harms that are assertedl