A year after Marion County Record raid, authorities keep ignoring press rights

It’s been a year since Marion, Kansas — population 1,922 — made global headlines after its whole police department raided the Marion County Record’s newsroom and its owners’ home. The paper’s 98-year-old co-owner Joan Meyer, shocked by the intrusion, died the next day.

The fallout continues. This week, special prosecutors finally released their long overdue report on the raid. It’s a mixed bag. They cleared the Record’s journalists of wrongdoing, but that should’ve been easy: The notion that they violated computer crime laws by using a government website to verify a tip was nonsensical from day one. Better late than never, though.

We also learned that Gideon Cody, the ex-police chief behind the raid, will be charged with after-the-fact obstruction. But he should be charged for the raid itself, not just the cover-up. What message does that send? Feel free to orchestrate revenge raids on newsrooms, as long as you're honest about it?

And it does seem like Cody — a Marion outsider who started as chief a few months before the raid — was the fall guy. He certainly did not act alone, but he’s the only one being charged.

One reason it should’ve taken days, not a year, to deem the raid illegal is its irreconcilability with the federal Privacy Protection Act of 1980. From the outset, press freedom advocates and the Record’s lawyers cited the little-known federal law — which probably makes the news about as often as Marion, Kansas. It should have stopped the raid before it started because it makes clear that Judge Laura Viar should never have issued the warrant authorizing the search.

The act outlaws searches and seizures of journalists’ materials, unless the journalist is being investigated for a crime. Congress was uncharacteristically prescient in anticipating that authorities would abuse that crime exception by inventing ways to characterize newsgathering itself as criminal. It included an exception to the exception to ensure that wouldn’t happen.

And yet, in Marion, it did. Still, newsroom raids are rare, especially since the enactment of the act in response to a 1971 intrusion into The Stanford Daily student newspaper’s offices. After the Marion raid backfired so spectacularly, it is hopefully less likely that we will see a similar one anytime soon.

But that doesn’t mean the act should fade back into obscurity. The Marion raid was an unusually dramatic violation, but authorities disregard the law on a smaller scale all the time, in ways the act’s drafters couldn’t have imagined. Searching a journalist’s phone after a protest arrest, for example, is just as illegal as barging into the Record’s office and stealing its computers and files.

In fact, The Stanford Daily recently had another run-in with the act, which it prompted lawmakers to pass in the first place decades ago — but this time in a distinctly 21st-century setting.

Sheriff’s deputies in Santa Clara County arrested student journalist Dilan Gohill while he was on assignment covering a pro-Palestinian protest on campus. Stanford is, alarmingly, standing fully behind the prosecution, despite that the student journalist was indisputably not there to protest, let alone break laws, but to document the news.

It gets worse. Gohill’s lawyers allege that, while processing Gohill, officers tried to make him unlock his phone with his face. That’s a blatant violation of the act (and state law). Fortunately, Gohill refused to unlock his phone and was able to move his face to avoid being forced to do so.

Also in California, the San Francisco Police Department earlier this year obtained an unlawful search warrant against independent news outlet IndyBay — as well as an illegal gag order barring the outlet from talking about it.

Thanks to legal help from the Electronic Frontier Foundation, the warrant was eventually voided, but it wasn’t an isolated incident: The same department raided the home of freelance journalist Bryan Carmody in 2019.

Of course, those examples are not as egregious as what happened in Marion. They didn’t involve nearly as much coordinating and conspiring. There’s no indication that the deputies had any personal beef with the Daily. Marion officials, on the other hand, had a long-standing grudge against the Record for investigating them. And, of course, no one died.

But these smaller-scale incidents add up. The U.S. Press Freedom Tracker has recorded 102 searches or seizures of journalists’ equipment since its launch in 2017.

And most of those searches violated the act, from Asheville, North Carolina, authorities obtaining an illegal warrant to search journalists’ phones for evidence of wrongdoing by protesters to the FBI raiding Tampa, Florida, journalist Tim Burke’s home newsroom over allegations that he broke computer fraud laws by finding interview outtakes online where a pop star went on antisemitic tirades.

Along with plenty of other alarming press freedom transgressions — arrests of journalists for reporting on local crime, restraining orders against reporters for knocking on officials’ doors, a marked increase in illegal judicial censorship orders — the cumulative effect of these privacy act violations is to intimidate journalists and encourage self-censorship.

Tech-savvy journalists attempt to mitigate these problems and protect their sources through digital security measures like encrypting their communications — but authorities try to criminalize that too, citing use of encryption as evidence of criminal intent. If you’ve got nothing to hide, why encrypt, say the same cops who want to encrypt their own communications to evade public scrutiny.

It’s a national problem, equally prevalent in urban and rural communities, whether in red or blue states. The anniversary of the Marion raid should not just serve as an occasion to shake our heads at the missteps of some small-town cops in Kansas. It should be a reminder to all journalists, and all law enforcement officers, of the rights afforded to journalists by the First Amendment and laws like the Privacy Protection Act.

But it would've been a far more effective reminder had there been swift and serious accountability for all of those responsible.