Lawfare Archive: A Chilling Violation of Press Freedoms in Marion, Kansas

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On July 10, the Department of Justice issued subpoenas to three reporters for the New York Times to testify before a grand jury,

“about their reporting on the new Air Force One and their confidential sources.”

The New York Times has accused the Trump administration of violating the First Amendment rights of its reporters,

and filed a motion to caution subpoenas on July 15th. The Justice Department in contrast has argued the subpoenas are necessary as part of its investigation and deliques that harm national security. For today's archive, I shows an episode from August 25th, 2023, in which Tyler McBrion sat down with Kate Luzenvogas, deputy director of advocacy at the Freedom of the Press Foundation, to discuss an instance in which a small newspaper and Marianne Texas was rated by local police.

They spoke about what caused the incident and considered the broader chilling effect that occurs when journalists are brought into act of investigations,

how to protect the press freedom and warm. I'm Tyler McBrion, managing editor of Laugh Fair, and this is the Laugh Fair podcast, August 25th, 2023. Earlier this month, there was big trouble in Little Marianne Kansas, where an entire police department rated the offices of the Marianne County record, a small family-owned newspaper about 60 miles north of Wichita, with seven employees and a circulation of about 4,000. To discuss this alarming violation of press freedoms, I sat down with Kate Luzenvogas, deputy director of advocacy at the Freedom of the Press Foundation.

We talked about what motivated the raid, how it went down, and the chilling effect this kind of thing can have on small town newspapers and big media organizations alike. We also discussed with journalists, from loan freelancers to sizable newsrooms, can do to protect themselves from all manner of press freedom violations. It's the Laugh Fair podcast, August 25th, a chilling violation of press freedoms in Marianne Kansas. Now, Caitlin, many of our listeners will be familiar with the story of what happened in Marianne Kansas,

“but for those who have maybe just read the headlines, can you tell us a bit about where Marianne Kansas is and what happened there earlier this month?”

Sure, so Marianne is a small town that's about an hour outside of Wichita, and earlier this month on August 11th, almost the entire police force showed up at the newsroom of the local newspaper, the Marianne County record, with a search warrant. And they raided the newsroom, they took nearly every piece of equipment in the newsroom, things like computers, reporters cell phone, they took the newsroom server, and they also took documents as well. And on the same day, they showed up at the home of the newsrooms publisher and co-owner Eric Meyer,

where he lived with his mother Joanne Meyer, who was also a co-owner of the newspaper, and they searched the home as well, and they took equipment from there, and they looked through documents in the home. They also showed up at the house of a local city councilwoman, and they searched the house of the councilwoman too. And what we know now is that the raids were connected to a story that the record was working on about a prominent local restaurant owner. And the reporters at the record were extremely disturbed by the raids, they were quite intimidating, and they also really stymied the paper's ability to publish,

because when the police took all of their equipment, it meant that they didn't have what they needed to put out the next edition of the paper, and since they didn't have their server, they didn't have the copy of the ads or the stories that they needed for the next edition of the paper. But most tragically of all, that co-owner of the paper Joanne Meyer, who was 98 years old, passed away the day after the raid,

So it's an extremely disturbing and shocking and outrageous press freedom violation that happened earlier this month.

Yeah, it's really important and tragic, I started the story, so thank you for walking us through that, and before we get into the raid and the ripple effects and also more of the lead up.

“Can you give the listeners a sense of the record itself, you know, what kind of paper was it, who does it serve?”

Maybe any history, it's circulation, that kind of thing. The record is a small local paper, it has a circulation of about 4,000 people, it's a community newspaper, and it covers stories of importance to the local community, whether that's local businesses or local politics, and like so many local newspapers, it's really the lifeblood of a small town, and one of the main news sources that people in that community used to find out what's happening with their neighbors and what's happening with their elected officials.

And I want to go back to the raid itself and the motivations behind it.

I was a bit surprised to hear that one of the motivations was about a prominent local restaurant owner, or a private citizen rather than perhaps, you know, an investigation into someone on the force.

“So can you explain that that motivation and that connection with the restaurant owner?”

And then I'm also curious about the legality of the raid. I understand that the judge, a local judge, signed a warrant, but how did this happen, essentially? Sure, so the record received a tip from a confidential source about this local restaurant owner.

The confidential source provided a record that showed that the restaurant owner had been previously convicted of a DUI,

and the source said that the owner was continuing to drive without a license, despite the fact that she had been convicted of a DUI. And when the record got that tip, they investigated it, as any good journalist would do, they verified it by using a state government website, where you can look up people's drivers information using things like their driver's license number. And they confirmed the accuracy of the information, but nevertheless, they decided initially at least not to publish the story, because they had some concerns about where their information was coming from, and whether or not the restaurant owner who was involved in a contest divorce,

maybe it was her ex-husband who was providing the information, or something along those lines.

“So what the paper actually did was they called the police, and they said, "Hey, you should check this out, you should look into this.”

We received this information and it's something you should know." And it wasn't until the restaurant owner actually spoke publicly about the conviction and accused the paper of going after her at a city council meeting that the paper then published a story on the DUI convictions and denied that they were doing anything improper with respect to her, but actually went ahead and published that story. And it was just shortly after that that the police went ahead and raided the newspaper.

And obviously, you were not there at the time of the raid, but reporting since then has come out sort of describing the raid. Do you have a sense of what it looked like, you know, an entire police force showing up at a small newspapers office, and then the home of the owner, I understand that video surface of at least the raid of the home. Can you paint a picture of, you know, what a raid like this looks like? Sure, there was, there is video of both the raid at the newspaper on newsroom, as well as at Eric and Joanne Meyers home.

The raid, my understanding was a surprise to the reporters, they didn't know it was coming. One of the reporters actually said that the police stashed her cell phone out of her hand, injuring her, um, exacerbating a previous injury that she had during the raid. And the video of the raid on the newsroom itself is interesting because it shows the police actually going through the newsroom, looking through documents, taking equipment, and making comments as they conduct the raid as well. And one of the comments that released it out to us at Freedom of the Press Foundation was a police officer who is taking a computer and says something to the effect of,

this is not encrypted, so we're good to go. That's not the exact quote, but something like that, this is not encrypted, so we're good to go. And the reason that stood out to us at Freedom of the Press Foundation is because we do a lot of work with journalists and newsrooms about the importance of encryption, both using encrypted messaging services to communicate with sources, but also making sure that their computers and other equipment are encrypted. So in the worst case scenario like this, if there is a police seizure of equipment, there is some level of protection for the information that is on that equipment.

That's interesting, and has it been confirmed yet whether or not the records equipment wasn't encrypted in fact or not? I don't believe that's been confirmed, so the police have returned the equipment to the record, I should finish the story and say that five days after the raid, the police actually backed down and the Marion County attorney withdrew the search warrant and said that it never should have been issued in the first place.

So the warrant has now been reversed, but the police did initially obtain a warrant. Is it clear now or yet how law enforcement justified the raid, at least in the paperwork filing for the warrant?

Is it clear yet how they were able to obtain the warrant? Why the judge signed it? Has anything come out since since the raid itself? Yes, so the application that the police filed with the warrant has been released to the public. It took a number of days for that to happen, but it was eventually released. If you look at that application in the part where the police recite the facts that are supposed to give rise to probable cause. It's very illuminating because the facts that the police list number one don't give rise to probable cause in my opinion and also in the opinion of the Marion County attorney who withdrew the search warrant.

And also do not acknowledge a federal law that protects newsrooms from these types of searches and seizures which we can talk more about. But what the facts recount basically is the story that that I told you at the beginning of this podcast that the newspaper received this information. That it verified the information on a state website that it contacted police and that's how police knew about the case in the first instance and just reciting those facts that then kind of conclusively states that the police believe they have evidence that the record has committed crimes like computer misuse and identity theft.

So the probable cause affidavit with the application is I would say shockingly insufficient and it's very concerning that any judge would sign the search warrant. It really raises the concern that the judge was basically just rubber stamping the search warrant.

“And in Kansas search warrants can be signed by a magistrate judge that's a low level judge that's the judge the level of judge you signed this search warrant. There's no requirement that those judges be attorneys in Kansas.”

In this instance the judge was a former attorney before she was on the bench so she did have legal training. But I think the case raises a broader concern in Kansas and other states if you have judges who may have no legal training who can actually sign off on search warrants. Are going to be missed especially important protections for the press are going to be missed. Yeah and speaking of the judge I believe Eric Meyer recently gave an interview in slate and the interviewer asked him why he thought the the rate happened and he said quote.

I think this is a confluence of personal analysts from the mayor a personal attempt to intimidate us from the police chief and basic incompetence from the judge in the county attorney. So I think you know there could have been an easy way to frame this as sort of a small town dust up you know just personal vendetta is getting in the way but I think the media has rightfully not framed it that way and framed it in wider you know first amendment press freedom issues. What what's the immediate effect of a raid like this on a on a newsroom you mentioned earlier that without the equipment and without their ad copy they couldn't publish the next day's edition but what are the short medium long-term effects of a raid like this on the newsroom on a small town newsroom and then also you know the media in general in the United States.

As so one of the most immediate effects for the journalists working in that newsroom is thinking about are we going to be able to put out the next edition of the paper as you said and here with the record. Incredibly they were able to put out their next edition on time they really had to scramble they had to work hard they were burning the midnight oil and working at all hours but they did it and that's amazing and that they deserve a lot of credit for continuing to publish in the face of of a raid like this.

“Kind of longer-term impacts I think the raid sends a really chilling message to the reporters not just at the record.”

But Kansas in general and really throughout the country it sends a message that if you investigate a story that the police or the prosecutor or a powerful member of the community don't like the authorities may target you.

And that's very chilling for reporters who are called on every day to look into instances of misconduct or wrongdoing and to report on things that are probably going to make some people angry.

“And thankfully here the reporters at the record haven't been chilled and have continued to do their great reporting even after the raid.”

As well as other reporters in Kansas I have to say it was amazing to see the Kansas Press Association and other news outlets in Kansas step up their reporting about Marion and things happening in the community after the raid and show that they would not be silenced and intimidated by this.

Here the record had a confidential source in the story that it was reporting about the business owner but it also has confidential sources for other stories that it's reporting.

And when the police go in and seize equipment like that and potentially rifle through all of the documents and notes and everything of a newspaper that raises a real risk that authorities will be able to uncover the identities of confidential sources and learn about what they're telling reporters. And that makes sources much less likely to talk to the press and when that happens it's really the public that loses out on valuable information. Yeah, it's certainly a chilling effect across a number of different constituencies you mentioned earlier that.

This was a bit of a surprise to the reporters in the newsroom or in the owner and I think that's unsurprising that it was a surprise to them they were probably thinking they were just doing you know the routine business of journalism and in verifying a news tip.

“Using public records sort of the humdrum every day work of a journalist so I think that leads me to the question of what are what protections are afforded to journalists and who who are considered journalists in the eyes of the law.”

I think this is a pretty almost stereotypical version of a newsroom to to the public imagination you know you have a small town newspaper newsroom.

But you know under the law who is a journalist and what protections are specifically afforded to them. There is a federal law called the Privacy Protection Act of 1980 that was actually inspired by a newsroom raid and that law prohibits newsroom raids in all but very limited circumstances that are set out in the in the statute. And so that's part of the reason that this rate is so concerning is because the Privacy Protection Act should have forbidden it and it seems like it just wasn't even considered in this case.

In the act itself the way that it defines who it applies to is that it applies to any person who has the purpose of disseminating a newspaper or book or broadcast or something like that something similar form of communication to the public. And so it's really a functional definition of journalism which I think is very important. It doesn't require you to have the title of journalist. It doesn't require that you work for a you know newsroom with 50 other reporters or even 10 other reporters. It really applies to any person who is fulfilling that journalistic function which is disseminating information to the public.

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“And how should this have worked if the police or law enforcement have a quote unquote credible legal concern that a newsroom is committing wrongdoing?”

Short of a raid, how should this have worked? The way it should have worked under the Privacy Protection Act is that police should have gotten a subpoena, which is a legal order that they would have served on the newspaper, ordering it to supply certain documents or equipment or whatever it is that police were seeking.

So that's the kind of essential protection of the Privacy Protection Act of 1980.

It doesn't say that police can't have access to materials, but it imposes this subpoena first requirement rather than a search warrant and a search. And the reason that that is important is because a subpoena gives a newsroom the opportunity to object in advance before police can get their hands on documents or equipment.

They had the police had a facially valid search warrant and so that they had to comply.

If the police had done the right thing and gotten a subpoena, the record could have gone into court in advance and said, "We have the following legal basis not to turn over this information that police is seeking. Importantly, one of them would have been the Kansas shield law, the reporter's Privilege law in Kansas, which actually provides protections for journalists, journalists and materials there." And so, giving that protection that ability to go into a court in advance and object, I just can't emphasize enough how important that is for a newsroom.

“And that's what the police absolutely should have done here if they were even going to pursue this investigation.”

I mean, it's outrageous that they were investigating the newspaper in the first instance for doing nothing more than verifying a tip.

But if they were going to pursue the investigation, they really needed to use the subpoena process not a search warrant. And of course, as you so well laid out, they did not do that and they went ahead with the raid. I'm curious what has happened now since then and what sort of recourse is available to the record. And it's owner. You mentioned that the search warrant has been reversed and the equipment, the seized equipment is not making its way back to the newspaper. What's next for the record? What do you think their options are now?

I was just hired in the attorney and they have said that they are investigating all legal options to try to vindicate their rights even after the search warrant has been withdrawn and the equipment has been returned. The Privacy Protection Act does provide for a civil remedy. It lets journalists and newsrooms who's rights have been violated under the Act file a civil lawsuit against the officials who have violated the Act and it provides for damages in that instance. That's one option that the record has. The record also could potentially consider a lawsuit under Section 1983, a federal statute that allows people to sue officials for violations of their constitutional rights.

And I think frankly the record could also consider a wrongful death lawsuit given the fact that Joanne Meyer died as a result of the raid. And of course that will be cold comfort to her family and the community and Marion who lost this person who can never be brought back.

“But I think that it's a very serious possibility and something that the record could be considering.”

I love to broaden the lens here beyond Kansas to place this particular raid, maybe in the broader context of newspaper raids in the country or just in the broader context of violations of press freedom in general in the country.

There's a lot of attention, I think, again rightfully so on Marion right now.

But where else has this sort of thing been happening in the country and what are other areas of concern for you at the foundation? Well news from raids themselves are extremely rare, likely because of the privacy protection act and the fact that they are illegal. Before the raid on the record, the last newsroom search that I'm aware of was in 2010 when police raided the offices of the student newspaper at James Madison University, the breeze.

“They were looking for photographs that they thought the student newspaper may have from a street party that had gotten out of control and turned into kind of a brawl or a riot.”

And they got a search warrant for the student newspaper's offices, they seized a CD that they believed contained photographs on it. The newspaper did hire a lawyer and after days of negotiation, the Commonwealth attorney withdrew that search warrant and returned the CD to the newspaper. So kind of a similar scenario to this one, but that was more than a decade ago and so these types of searches on an actual newsroom are very rare. That's not to say that other types of similar searches haven't happened more recently in the past.

So in recent years in San Francisco there was a search of the home of a freelance journalist, Brian Carmody, who had reported on the death of a public defender in San Francisco and he had received a confidential police report from a source. And police were trying to investigate the source of the leak of the report and they searched Carmody's home. And again, this was a outrageous violation of press freedom, it was really shocking, but it was a freelancer. And so it didn't have the same resonance, maybe as it does when police raid a newsroom.

Well, Carmody objected and eventually the search warrant were quashed and he actually filed a civil suit like we were talking about and the police ended up settling with him for more than $300,000. But more recently, at almost the same time that the raid on the Marion County record was happening, there had been an FBI raid of a freelance journalist in Florida, Tim Burke and his home office was rated and police seized materials from that.

And what Burke is well known for is accessing video and audio on publicly accessible websites, but that are kind of hidden or not, well known to the general public and then packaging them and selling them to other news outlets to produce a story.

“That's what he says that he did here, but federal authorities say that he's broken computer crime laws by doing that and they've rated his house and very troublingly in that case.”

Documents that the prosecutors have filed have questioned whether Burke is a journalist because he calls himself, I think, a media consultant on his website and that goes back to the question you asked about, you know, who is a journalist and it really shouldn't come down to the title. He may have used the title media consultant because he's freelancing now, but what he's doing is collecting newsworthy information and disseminating it to the public and that journalistic function is what really should matter.

So the rate on Marion was rare, but it is not the only type of violation of press freedom that's in a similar vein that we're concerned about it freedom of the press foundation and that doesn't even get into the many other cases of journalists who may be covering a protest and have their cell phone seized by police or their recording equipment or their camera.

“So we have to stay vigilant about press freedom in the US, we can't be complacent and think we have the first amendment and everything is fine.”

Yeah, it's a great point and a shameless plug for the night first amendment institute this summer published report on violations of press freedom of journalists covering protests specifically during 2020 and the authors came on the law for podcasts a few weeks ago. So if you're listening to this and you just didn't that definitely check it out. It's a very relevant to this discussion as well. Unfortunately, you mentioned earlier in the in the discussion about encryption. What are some other ways that journalists of all stripes from freelancers slash media consultants working alone to newsrooms can protect themselves or, you know, reinforce their own rights or protect themselves against violations of their own rights.

And feel free to elaborate a little more on encryption, but I'm curious, you know, any other ways that that newsrooms can can do this.

Sure, so I hope that many journalists listening now know about the privacy protection act of 1980 and how important it is and what we recommend is that you actually keep a copy of that law in your newsroom or if you're journalists working from home, keep a copy of it at home. And if police show up at your premises with a search warrant, first of all, stay calm, be polite, but ask to see a copy of the search warrant, ask them if you can call your editor or your newsroom lawyer. If you have one, if you don't have a newsroom lawyer, the reporters committee for freedom of the press offers a legal hotline that reporters can call to try to connect with an attorney. So that's another good resource.

But also give them a copy of that privacy protection act that you have stashed away at home and point out to them the protections in the law and the fact that officers can be held personally liable if they violate the law.

And really do everything you can to try, I guess, to delay the search before you can get your lawyer or your editor there to try to object.

“You obviously have to stay polite and professional and you can't obstruct officers, but I think just knowing what your rights are as a journalist and making sure that you are politely but confidently asserting them.”

Maybe helpful in situations like this with the police encryption like you mentioned Tyler is important and keeping the backup copies of your records is also important that's something that the newspaper and Marion County learned when its equipment was seized one of the problems was it didn't have any backups and so it was missing a lot of stuff that it needed for the next edition of the paper and so keeping those backups are important. I think we're really in a practical advice about encryption and what to do, I'll point listeners to guides that the freedom of the press foundation has on its website about how to use encryption and how to keep your material safe and backed up.

Yeah, thank you, that's a really helpful and actionable list and speaking of helpful and actionable lists, you recently, Caitlin published a piece on the freedom of the press foundation's website called now is the time to stand with the Marion County record here's how.

So I'd love if you could walk through some of those ways that you mentioned in your piece for any listeners who you know maybe alarmed by the recent raid and moved to do something.

Yeah, absolutely so the equipment has been returned in the search warrant warrant has been withdrawn but the fight is not over for the record as we've talked about. They've hired an attorney and they are pursuing potential legal claims against the police and the authorities and that's really important not just for the record but also for press freedom as a whole to vindicate those rights and to send a message that. When authorities violate press freedom rights, there are consequences. So one thing that people can do is support that legal fight that the record is taking up and the society for professional journalists has pledged to cover up to $20,000 in legal fees for the record.

Also, just subscribe to the record. You can get online subscription. Some people have gone creative and actually bought classified ads in the record to like publish the text of the first amendment, which is another way to support the record financially is important. And then Johan Myers family has asked for donations to be made to the Kansas newspaper foundation in her memory. So those are other than other avenue of financial support other than financial support. I think just adding your voice to the chorus of people that have condemned the raid and our supporting press freedom is incredibly important.

The reason that the police reversed their decision here and the reason that the search warrant was withdrawn was because there was a public outcry and because the story garnered national media attention and unfortunately that doesn't always happen with every press freedom violation and it needs to happen more. So adding your voice and condemning not just this raid, but any time you see a press freedom violation, write a letter to the editor or you could even write an op-ed for your local news outlet or talk to your neighbors or put it out on local asserts or social media and condemn what's happening and speak up on behalf of journalists in the free press that goes a long way and regular people can really contribute to the fight for press freedom by doing that.

Thank you so much for that. Again, very helpful and actionable list. Caitlyn Vogueis is the deputy director of advocacy at the freedom of the press foundation. Thank you so much for taking the time.

“Thank you for having me and for covering this really important story for press freedom.”

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