Civil Rights Newsletter
Protecting a Reporter's Work Product From Search and Seizure
Reporters generally enjoy protection from being compelled to disclose confidential source information in legal actions under the freedom of the press provision of the First Amendment to the U.S. Constitution. This protection is generally referred to as the reporter’s privilege. Some states also provide protection through state “shield laws.” In 1980, a federal law called the Privacy Protection Act (the Act) was enacted to provide additional protection by prohibiting newsroom searches by government employees.
The Privacy Protection Act of 1980
In some instances, when a subpoena cannot be issued, as in cases when a court date has not yet been set, government officers or employees have attempted to search reporter newsrooms to seize the information. In such cases, assertion of the reporter’s privilege to keep the information confidential would be premature and thus, unavailable.
However, the Act protects a reporter’s “work product” or “documentary materials” in their possession from being searched or seized in newsroom searches by government officers and employees, even if the government has a search warrant. “Work product” generally includes materials that were created for communication to the public, such as article drafts and notes. “Documentary materials” refers to items used to formally record information, such as photographs and videotapes.
Congress passed the Act in reaction to a 1978 U.S. Supreme Court case, in which the Court ruled that the government could search a newsroom or a reporter’s home with a search warrant if there was reason to believe that evidence of a crime would be found. Like the reporter’s privilege, the purpose of the Act’s prohibition against newsroom searches is to encourage the free flow of information to the public via the news media, by protecting the confidentiality of a reporter’s sources.
Exceptions to the Federal Prohibition on Newsroom Searches
The protections provided by the Act are not absolute. In other words, under certain specified circumstances, searches typically in violation of the act may be permitted. The government may search for or seize a reporter’s “work product” or “documentary materials” where the government has probable cause to believe that:
- The person possessing such materials has committed or is committing the criminal offense to which the materials relate
- The information is necessary to prevent death or serious injury
- The issuance of a subpoena would lead to the destruction of “documentary materials” (the materials would likely be destroyed when the members of the newsroom hear about the issuance of the subpoena)
- The information relates to national security or child pornography
If federal or state law enforcement officials violate the Act, a news organization may sue and could receive damages, possibly including legal fees.
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