On Tuesday, a federal judge unsealed records showing that the Department of Justice tried and failed to get search warrants targeting journalists Don Lemon and Georgia Fort, as well as three protesters involved in the Cities church demonstration in St Paul, Minnesota, last winter.
A court rejected the search warrants – twice. In strikingly blunt opinions, magistrate judge John Docherty said officials didn’t meet basic legal standards and chastised them for failing to mention a federal law that may have made some of the warrants illegal. The Department of Justice later withdrew the requests.
The justice department’s blatant disregard for the constitution and attempt to hide the law is disturbing, even if the department’s recent track record means it’s no longer shocking. With government attacks on freedom of speech increasing and the justice department’s independence declining, it’s more important than ever for judges to aggressively scrutinize government requests, for prosecutors to face real consequences when they abuse their power, and for Congress to pass strong laws protecting first amendment rights.
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The search warrant records that were recently unsealed in the Cities church protest case show how the justice department is using the prosecution of protesters and journalists to directly threaten freedom of speech.
The first set of applications sought information about YouTube channels used by Lemon and Fort, and a third channel that allegedly belongs to a protester, William Scott Kelly. But in addition to information about Lemon, Fort and Kelly, the government also wanted information about their subscribers – the names, address and emails of people who simply watched their channels.
Why would the government need that information? Watching a YouTube channel isn’t a crime. It’s clearly protected by the first amendment. The obvious effect of demanding subscriber information during a criminal inquiry is intimidation, to make people think twice before watching independent journalism or speech critical of the government.
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The second set of warrant applications raised another free speech problem. The government again targeted Lemon and Fort’s YouTube channels, but failed to mention a federal law that bars most search warrants targeting journalists and others who publish information to the public.
That law, the Privacy Protection Act of 1980, exists for a reason. In most cases, it requires the government to use a subpoena instead of a search warrant when making legal demands to the press. That matters because the news media can challenge subpoenas in court beforethe government gets access to sensitive materials. Search warrants can only be challenged after the fact, once sources have been exposed and newsroom files seized.
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The government’s failure to mention this law wasn’t a mistake, and it wasn’t an isolated incident. Prosecutors told Docherty that they thought about whether the statute prohibited the warrants but decided they didn’t have to mention the issue to the court. Similarly, federal prosecutors also failed to tell a Virginia judge about the act when they obtained a search warrant to raid Washington Post journalist Hannah Natanson’s home. That judge later said that he may have ruled differently had he known about the law.
It’s wrong to refuse to tell judges about a statute that’s meant to protect first amendment rights. Attorneys aren’t supposed to hide relevant law from courts and hope judges overlook it, especially in secret warrant application proceedings when there’s no attorney on the opposing side to object. Doing so violates prosecutors’ ethical duties and undermines the justice department’s supposed commitment to justice.
For years, courts have given justice department prosecutors a “presumption of regularity” – an assumption that they’re acting in good faith. Cases like this one are just one of the many examples of why that assumption is no longer justifiable. As the justice department continues to abuse the criminal justice system to target government critics, whistleblowers and journalists, judges must refuse to rubber-stamp search warrant applications, especially in cases where first amendment rights may be implicated. Prosecutions of journalists for doing their jobs – like those of Fort, Lemon and photographer Junn Bollmann, who was also arrested for covering the Cities church protest – should also be thrown out on first amendment grounds.
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Courts must also unseal records that show government incompetence, lack of ethics, and violations of constitutional rights. The only reason we know about the justice department’s antics in this case is because Judge Docherty took it upon himself to unseal the records. What other abuses are flying under the radar in still sealed court records around the country?
In addition, judges can also sanction attorneys who violate their ethical duties and refer them to attorney ethics boards for discipline. Although attorney ethics committees have so far shown little appetite to hold justice department attorneys accountable for their misconduct, that could change if respected jurists are the ones urging them to do so.
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Finally, Congress can prohibit legal gamesmanship around legal protections for press freedom that has become commonplace at the justice department. The Privacy Protection Updates Act would require the government to affirmatively disclose the act when it seeks search warrants targeting the press and others who publish information. Lawmakers should pass this essential bill to stop the next prosecutor from hiding the law from judges.
In this case, a judge stopped one instance where the government tried to stifle constitutional rights. We must all work together to stop the next one.
