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The Revealing Case of a Kansas Judge and a Search Warrant


Small-town newspapers are vanishing from the American landscape, crushed by economic pressures from online media and corporate consolidation. In some cases, governments have piled on, seeking to sink or undermine the papers that remain. Those papers should be able to rely on courts to protect them from government abuses.

Too often, however, courts fail to do their job. Marion, Kan. , provides a vivid, troubling example.

On Aug. 11, the police in that central Kansas town of 2,000 brazenly the office of the weekly Marion County Record and the home of its publisher. Officers seized reporters’ computers, phones and other materials.

The Marion police the raid was necessary to an ongoing investigation. That inquiry reportedly concerned a local restaurant owner’s that the Record, while reporting about her application for a liquor license, had broken the law to obtain information about her past drunk-driving offense. Magistrate Judge Laura Viar’s cited “identity theft” and “unlawful acts concerning computers” as grounds for the raid.

The Record’s publisher, Eric Meyer, that the paper had also been digging into allegations of past misconduct by Marion’s police chief, Gideon Cody, who took office on June 1 after retiring from the Kansas City Police Department. Mr. Meyer says Mr.

Cody had threatened to sue the paper. On Wednesday, following widespread condemnation of the raid, Joel Ensey, the Marion County attorney, essentially threw Judge Viar under the bus. Mr.

Ensey saying that “insufficient evidence exists to establish a legally sufficient nexus between this alleged crime and the places searched and the items seized. ” He asked the court to issue an order releasing the seized materials. A government raid on a newspaper’s office and its publisher’s home, with police seizing reporters’ computers and phones, sounds like a lurid tale from Vladimir Putin’s Russia.

This may have been an extreme case, but the documents dozens of government (as well as private) offenses against American journalists every year — not just searches and seizures but also arrests, physical assaults by the police, prior restraints, intimidation and improper denials of access to locations and information. All of this can add up to big legal fees for newspapers struggling to survive. Newspapers are definitely struggling.

Between 2004 and 2019, the United States of its papers, mostly small, nondaily papers like the Marion County Record. What happens to communities without local newspapers? Residents of Connecticut might have remained ignorant that more than three dozen state municipalities had been by design, a story The Connecticut Mirror broke in partnership with ProPublica in 2019. The people of Maricopa County, Ariz.

, might never have learned that “a popular sheriff’s focus on immigration enforcement the investigation of violent crime and other aspects of public safety,” as stated by the 2009 Pulitzer Prize for local reporting awarded to the East Valley Tribune. The crucial value of local newspapers helps explain why American law provides strong protection for free, independent journalism. The First Amendment bars government from abridging the freedom of the press.

Congress in 1980 enacted the , which prohibits law enforcement, except in narrow circumstances, from searching or seizing a journalist’s work product or documentary materials. Those legal protections should stop abuses like the Marion raid in their tracks. Why, then, do the abuses still happen? Because laws need courts to enforce them.

Some judges act diligently to prevent government abuses of the press. Others, however, fail to enforce press protections. The problem starts at the top.

The U. S. Supreme Court, the chief arbiter of our constitutional law, once cared deeply about press freedom.

The court affirmed newspapers’ despite national security concerns, for publishing truthful information and barred the government from singling out the press for . The court, however, has long shown about protecting journalists, and it has not decided any significant press freedom case in more than 20 years. Part of that chasm owes to the internet, which has raised real (though ) challenges for figuring out who should count as “the press.

” But much of it owes to the justices’ while fixating instead on the First Amendment rights of , and . By abandoning the press, the Supreme Court has licensed law enforcement and lower courts to regard journalists with ignorance, laziness or malice. This problem is especially acute in smaller communities that get little outside scrutiny.

In Marion, Judge Viar appears to have answered local law enforcement’s request that she jump to its aid with a credulous “how high?” Elsewhere, judges have issued similarly dubious rulings against journalists. For instance, a judge in California this month with a lawsuit to censor a journalist’s publication of information he obtained from the city — a classic prior restraint on speech, almost axiomatically unconstitutional. In May, a New Hampshire judge ordered a reporter to of interviews with sources in connection with a dismissed defamation suit that the plaintiff wanted to refile.

In 2021, a Texas judge against a journalist whom police arrested and after the journalist filmed a police check on a mentally ill man. The case ended in a mistrial. The Marion County Record the over its raid.

Other news organizations are behind the paper, and it will probably win. The damage, though, is mostly done. The Marion police sent a clear message of intimidation.

Legal redress will take time and money. Other financially strained small-town newspapers, and some in larger communities, will contemplate the Marion raid and think twice before risking their tenuous business models by poking the local police beehive. Protecting local newspapers requires urgent action at several levels.

Nonprofits and donors concerned with sustaining democratic institutions should steer more funds to organizations like the and the , which provide financial and logistical support for journalists under government assault. State legislatures should enhance legal protections for the press. News organizations should push judges to enforce those protections.

“The only security of all,” , “is in a free press. ” A healthy democracy needs robust, independent journalism, shielded from government assaults, in every community. An attack on press freedom in rural Kansas, or anywhere else, is an attack on democracy everywhere.

Gregory P. Magarian is a professor at the Washington University School of Law in St. Louis, where he teaches and writes about constitutional law, with emphasis on the freedom of expression.

He is the author of “ : The Roberts Court’s First Amendment. ”.

From: nytimes
URL: https://www.nytimes.com/2023/08/20/opinion/kansas-press-freedom.html

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