Journalists’ source material isn’t ‘stolen goods’

Back in January, we warned about the dangers of authorities characterizing journalists’ source material as “stolen goods” in an attempt to circumvent the First Amendment and prosecute journalists for receiving information from their sources.

But our lead example then was the investigation of Project Veritas for obtaining Ashley Biden’s diary from a thief — not exactly a sympathetic set of facts. Recently, though, the Los Angeles Times reported that the Los Angeles County Sheriff’s Department secretly investigated reporter Maya Lau between 2017 and 2021 for obtaining a list of “problem deputies” from a source.

The basis for the investigation? That Lau “knowingly received stolen property.” Sounds familiar. Authorities in LA ultimately did not indict Lau, probably because the Supreme Court has already ruled, most recently in the seminal 2001 case Bartnicki v. Vopper, that journalists are entitled to receive and publish illegally obtained documents and recordings from sources, as long as they don’t participate in the theft themselves.

The sheriff's department apologized for its actions, and said it no longer investigates journalists for publishing government records (they should tell their counterparts in LA’s city government, who just tried, unsuccessfully, to sue a journalist for possessing records that the city gave him).

But they might have reached a different decision if there were appellate cases recognizing a “stolen property” exception to the Bartnicki rule. And last week, the U.S. Court of Appeals for the 2nd Circuit came dangerously close to doing so in the aforementioned Project Veritas case, where the controversial outlet is accused of possessing stolen property, including Biden’s diary, and transporting it across state lines.

The stolen property exception makes no sense. A journalist’s right to obtain and publish stolen documents is meaningless if they can’t “possess” them.

It’s not the first time the government has come up with nonsensical ways to circumvent Bartnicki — prior examples range from prosecutors charging WikiLeaks founder Julian Assange with violating the Espionage Act by obtaining and publishing leaked government documents to indicting digital journalist Tim Burke for computer fraud for finding news online.

But at least the reach of those legal theories is limited to national defense reporting and digital journalism, respectively. The “stolen property” theory could criminalize any use of unlawfully obtained documents, essentially nullifying Bartnicki.

Nonetheless, the appellate court rejected the argument that Bartnicki barred the investigation of Project Veritas because “a magistrate judge issued search warrants after finding probable cause that the Petitioners’ electronic devices contained evidence of federal crimes including conspiracy to transport stolen property across state lines and possess stolen goods.”

This circular reasoning – that if a judge approved a warrant, that settles questions as to its constitutional propriety – is disingenuous and dangerous. Low-level judges rubber stamp warrant applications all the time, often without considering their constitutional implications.

Perhaps that's why the 2nd Circuit designated its order as non-precedential: it knew its reasoning was unsound and problematic if adopted by other courts. But even non-precedential orders can be persuasive to lower courts, or give them cover to endorse similar nonsense when convenient.

Of course, the award-winning journalists who published the Pentagon Papers and the Snowden leaks, and countless other journalists whose reporting has relied on information their sources obtained illegally, also “possessed” the documents they published.

It’s possible the Project Veritas case is different. There are allegations that, after receiving the diary, Project Veritas requested that its source provide more of Biden’s property to help it confirm the authenticity of the diary. If the investigation is focused solely on that – whether Project Veritas instructed its source to steal non-expressive, non-newsworthy materials – then it’s another case (and a far less concerning one) entirely.

But the 2nd Circuit’s opinion, like previous rulings in the case, does not say that, and appears to lump in the diary with any other stolen materials at issue in the case.

That can’t have been the 2nd Circuit’s intention. It knows it is bound by the Supreme Court’s ruling in Bartnicki, and it can’t create an exception that swallows the rule whole.

But unless courts are cautious, clear and specific when they carve out a particular set of unique facts from well-established press freedom protections, zealous lawyers are sure to quote their words out of context in support of bogus legal theories.

And that’s likely what the LA County Sheriff's Department would have done if it had the 2nd Circuit’s ruling when it sought to convince prosecutors to pursue charges against Lau.

This article was updated to correct the spelling of Maya Lau's last name in the last paragraph.