April 28, 2010 | By Jennifer Granick

Gizmodo Editor Chen Entitled to a Little First Amendment Respect

In yesterday's post, we asserted that the REACT high tech task force search of Gizmodo editor Jason Chen's home and seizure of his computers and other property as part of their investigation of that blog's reporting on the iPhone 4G prototype was almost certainly illegal. That claim caused some to question whether the California shield law and the federal Privacy Protection Act (PPA) apply if the reporter himself is suspected of criminal activity.

Both statutory provisions likely apply here, and for good reason. The First Amendment does not excuse illegal activities, but it certainly provides safeguards to ensure that free speech interests are not trampled along the way.

Regarding the PPA, as we said in our original post, "[t]he PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply 'if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein.'" If Chen’s property was seized under the theory that he or Gizmodo might be guilty of, say, receiving stolen property for taking possession of the iPhone about which the blog reported, even if he had reason to believe that it was stolen, then the seizure likely violated Chen’s PPA rights because the alleged crime would be one covered by the federal statute.

The California law is more stark. Penal Code section 1524(g) says sets forth that "no warrants shall issue" for unpublished "notes, outtakes, photographs, tapes or other data of whatever sort" if that information was "obtained or prepared in gathering, receiving or processing of information for communication to the public." There is no statutory exception for cases in which the journalist is the one under investigation. If the California legislature intended such an exemption, it could easily have included one, as it did in another part of the same Penal Code section 1524, subdivision (c), which prohibits search warrants targeting physicians, psychotherapists, and members of the clergy, with an explicit exception if they are “reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested." (For a review of the respective histories of Penal Code subsections 1524(c) and (g), see PSC Geothermal Services Co. v. Superior Court, 25 Cal. App. 4th 1697, 1705 (Cal. Ct. App. 1994).)

Notwithstanding the clear language of the statute, some observers have pointed to the case of Rosato v. Superior Court, 51 Cal.App.3d 190 (1975), arguing that it stands for the proposition that California's state shield law "wouldn't apply to subpoenas or searches for evidence of such criminal activity." The Rosato decision, however, addresses whether a constitutional right (in that case the right to receive a fair trial) could trump the Evidence Code under certain circumstances. One problem with relying on Rosato is that the reporter’s privilege is now a constitutional and not merely a statutory right, having been overwhelmingly approved by voters in 1980 (after the Rosato decision). See, e.g., Liggett v. Superior Court (Gregerson), 260 Cal. Rptr. 161 (Cal. App. Ct. 1989) ("The purpose of adding the shield law to the Constitution was ostensibly to trump the reasoning of Rosato and Farr and to further insulate the shield law from judicial tampering.") (vacated on other grounds). If the reporter’s privilege is to give way to a competing right, that right must be constitutional in nature, as the California Supreme Court noted in Miller v. Superior Court, 21 Cal. 4th 883, 898 (Cal. 1999):

[T]here is nothing illogical in interpreting “the people['s] ... right to due process” not to include the right to compel the press through the sanctions of contempt-incarceration and substantial fines-to supply unpublished information obtained in the newsgathering process. The fact that the assertion of this immunity might lead to the inability of the prosecution to gain access to all the evidence it desires does not mean that a prosecutor's right to due process is violated, any more than the assertion of established evidentiary privileges against the prosecution would be a violation.

A bigger problem is that Rosato had nothing to say about the warrant restrictions Penal Code section 1524(g) sets forth to ensure that police investigations involving reporters do not disturb the confidentiality of sources or other unpublished information.

Protections for journalists implicate not only the journalist's right to speak but also the public's interest in obtaining information. That is why the First Amendment protects reporters who publish truthful information, even when it was illegally gathered. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 527-28, 533-35 (2001) (First Amendment barred imposition of civil damages under wiretapping law for publishing contents of conversation relevant to matter of public concern); Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979) (First Amendment barred prosecution under state statute for publishing name of a juvenile defendant). These protections apply even when the reporter has arguably stolen commercial trade secrets or otherwise violated the law. See, e.g., Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996) (overturning an injunction preventing Business Week from publishing information about a court case even though the District Court had found that the magazine had "knowingly violated the protective order" by obtaining the documents that necessarily reflected "trade secrets or other confidential research, development or commercial information...."); CBS Inc v. Davis, 510 U.S. 1315 (1994) (permitting broadcast of footage of a meat-packing operations obtained through “calculated misdeeds.”).

To be sure, if Gizmodo or Chen did break the law, the First Amendment will likely not affect their potential civil or criminal liability. (The police have as of yet not identified what crime was allegedly committed, who allegedly committed that crime, and what evidence supports such an allegation.) But even in instances in which a reporter may have violated the law, and could be subject to criminal or civil liability for that violation, the First Amendment still applies, as do the procedural safeguards in California law and the federal PPA. Simply put, while a court may conclude that under particular facts and circumstances that a reporter must divulge sources or unpublished materials, or that he is liable for his misdeeds, police may not decide on their own to ignore free speech protections for journalists merely by claiming that the reporter may have committed a crime.

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