The Aug. 11 police raid of the Marion County Record—in which the police seized the newspaper’s computers and reporter’s and editor’s personal cell phones at both the newspaper’s offices and publisher’s and reporter’s homes—may have started in a small Kansas town, but the case has grown into a major cause for those concerned about the First Amendment and freedom of the press.
And many newspaper publishers, editors and reporters—including several in South Carolina who have contacted the Press Association in the past several days—are asking, can that happen here?
The short answer, unfortunately, is yes.
Information about the situation in Kansas is still emerging, but it seems that the raid was the result of a criminal complaint filed by a local restaurant owner, Kari Newell, who alleged that the newspaper had stolen her identity and illegally used a computer when its reporters obtained information about her prior DUI arrest and that she drove with a suspended license. Under Kansas law, the arrest would have prevented Newell from obtaining a liquor license for her restaurant.
The Record obtained the information from an anonymous source on Facebook, then verified it on a publicly-available state database. But the paper did not publish the story. Instead, Record owner and publisher Eric Meyer contacted the Marion police department, telling them that it had received “a file that we thought had suspicious origins.” The newspaper did publish a story after Newell complained about the newspaper at a city council meeting.
The newspaper was also apparently investigating newly-hired Marion Police Chief Gideon Cody’s employment history.
Federal law generally requires law enforcement—federal, state and local—to use subpoenas to obtain materials from press entities, rather than search warrants. With a search warrant, the police convince a judge that an immediate search is necessary to obtain evidence of a crime. A subpoena, on the other hand, notifies the target of what information is being sought, with a deadline for submitting it. This allows the target to challenge the request in court.
The law does provide an exception, when an individual associated with the media entity is a suspect in the investigation. This is the justification that Chief Cody gave for the raid: “It is true that in most cases, [the federal law] requires police to use subpoenas, rather than search warrants, to search the premises of journalists unless they themselves are suspects in the offense that is the subject of the search,” Cody wrote in a written statement, including the emphasis.
The Marion police department told the Kansas Bureau of Investigation that the raid was justified on the grounds that the newspaper had been involved in the “illegal access and dissemination of confidential criminal justice information.” A search warrant authorizing the raid on these bases was approved about an hour beforehand by Marion County District Court Magistrate Judge Laura Viar.
Meyer, who spent 16 years at the Milwaukee Journal and then 25 years teaching journalism at the University of Illinois, Urbana-Champaign before buying the Record in 1998, said that the raid is “going to have a chilling effect on us even tackling issues,” and “a chilling effect on people giving us information.”
The deluge of attention that the police raid in Marion has received may be extraordinary, but unfortunately it is not uncommon for local media and others who criticize or question local officials or community leaders to find themselves facing onerous legal action against them. Just last month my column focused on cases in which police have arrested journalists covering protests and other events. In most of these cases, the criminal charges that were the basis of the arrests are dropped, and in some cases when journalists pursue the issue they have won substantial damages for violation of their First Amendment rights.
Criminal defamation has often been used as a weapon against media who criticize local officials.
In another Kansas case, the editors of the Baxter Springs News were charged with criminal libel after publishing a letter criticizing City Clerk Donna Wixon. The charges were eventually dropped. But in a subsequent civil lawsuit, a federal judge upheld the constitutionality of Kansas’s criminal defamation statute. The rewritten law remains on the books.
A more recent example is a Georgia woman who was arrested and jailed under an archaic state criminal defamation statute—declared unconstitutional 30 years before and formally repealed a few months after the arrest—for criticizing his children’s father—the local jail administrator—on Facebook. The criminal charges were dropped, and a civil lawsuit against the local officials who ordered the arrest was settled.
In Texas local blogger Priscilla Villarreal, who used the name La Gordiloca on Facebook, was arrested for obtaining information on arrests, traffic accidents and other law enforcement activity from a member of the police force, before it was officially released. She was charged with misuse of official information for personal gain, a third-degree felony. She was released after a judge ruled that the statute was unconstitutionally vague. Her subsequent civil lawsuit was dismissed by a federal trial court, but that result was reversed by the Fifth Circuit Court of Appeals.
In Louisiana the St. Tammany Parish sheriff’s office obtained a warrant to access a pseudonymous email account that Jerry Rogers, Jr., a federal HUD investigator (and former St. Tammany Parish sheriff’s office employee), used a to criticize the lengthy investigation of a still-unsolved murder. The sheriff’s office also arrested Rogers—including a strip search—under Louisiana’s now-repealed criminal defamation statute, even though the sheriff’s office had been informed that the statute had been held unconstitutional when applied to statements about public officials. After the charges were dropped, Rogers sued the sheriff’s office in federal court. A district court judge ruled that the case could proceed, and on Aug. 9 the Fifth Circuit Court of Appeals agreed. But the appeals court decided to reconsider the case en banc, with the argument held on Jan. 25, 2023. The decision of this hearing is pending.
Here in South Carolina, in 1998 James A. Fitts, editor of The Voice in Kingstree, was arrested on criminal libel charges for a column he published, “My Vote Is Not For Sale,” in which he called two state legislators running for reelection “black traitors” involved in “corrupt dealings,” and added, “if every black in Williamsburg County would start stealing today and steal every day for the rest of their lives, they could not steal as much as those two have stolen during their time in power.” The charges were dropped after the election.
In 1991, Drew Wilder of The Banner in Orangeburg accurately reported on a police report which stated that local high school principal Hammond D. Still had been “arrested and charged with assault and battery and disorderly conduct … in connection with an attack on his wife.” Wilder’s report of the police report was accurate, but the police report’s statement that Still had been criminally charged was not. Like Fitts, Wilder was arrested on charges of criminal libel, although the charges were also dropped.
Fitts and Wilder joined with the Press Association to challenge the state’s criminal defamation statute. The federal district court declared that the statute is facially unconstitutional, yet the statute has not been formally repealed.
The commonality among these cases is that the punitive forces of the law—arrests for criminal defamation, a raid for supposed misuse of a computer—were used against those who questioned the legitimacy or honesty of community “leaders.” It is a weaponization of the law by those in power.
There are similar power structures in many areas of South Carolina, as shown by recent investigative journalism uncovering a variety of abuses and ethically questionable behavior. And, of course, the ongoing Alex Murdaugh saga revealed the power structures of one rural South Carolina town. As many local newspaper editors and reporters can attest, the power brokers in many towns often don’t like too many questions being asked or their actions being questioned.
So, could something like the police raid on the Marion County Record happen in South Carolina, with local officials and leaders using the legal system to thwart aggressive reporting? It certainly seems possible.
Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his
