Photographer Was Newsgathering During UC Berkeley Chancellor House Protest
Search Warrants Against Journalistic Work Product Expressly Barred By California Law
UC Sought to Use Images to Investigate and Discipline Student
Oakland - On Friday, June 18, an Alameda County Superior Court judge quashed an illegal search warrant issued for the unpublished news photographs of veteran photojournalist David Morse. The court also ordered the return of all of Morse's photographs, including any copies made by the University. The court also ordered the University to declare under oath what agencies received copies of the photographs, if any.
Morse has covered hundreds of demonstrations and other events since 2002. He was arrested and his camera searched in connection with a protest he was covering at UC Berkeley on December 11, 2009. The charges were dropped at Morse's first court appearance, but not before a search warrant had issued for his unpublished photographs. The California Penal Code prohibits the issuance of search warrants for unpublished journalistic materials.
Although the UCPD police report more than once referenced Morse's repeated assertions that he was a journalist, officers omitted this crucial fact in the sworn affidavit they filed with the court in support of the search warrant. Thus the judge who issued the search warrant had no indication that Morse was reporting for a news organization at the protest.
The Alameda County District Attorney did not oppose Morse's motion and indicated that no criminal investigation is pending. The University opposed the motion, arguing that it had an interest in using the photographs to investigate students for disciplinary purposes. The University also argued that it could continue using copies of Morse's photographs even if the warrant was deemed illegal.
The court rejected these and the University's other contentions.
Morse was represented by First Amendment Project on a pro bono basis.
California, like many states, has a law that prevents search warrants being issued against journalists. These laws were mostly passed in the wake of a 1978 Supreme Court opinion in which the Court found that the First Amendment does not prevent a search warrant from being executed against a journalist, states were free to grant journalists such right by statute. The federal government passed its own version of the law as well, the Privacy Protection Act of 1980.
Why offer journalists this protection? The answer is simple: Journalists cannot do their job of informing the public if those who they are covering believe that the journalist is gathering information that will be readily available to law enforcement.
In December of 2009, David Morse, a respected and veteran independent photojournalist was arrested while covering the student protests at the Chancellor's House on the UC Berkeley campus. The details of his arrest are a story in its own -- perhaps we'll cover that in a future email update -- but what is most important now is that as he was being detained and ultimately arrested, he identified himself as a journalist to the UC police officers no less than 6 times, repeatedly offered to show his press credentials and did after several hours get a commanding officer to look at his press credential. Nevertheless, Morse was arrested and his camera was seized as evidence pursuant to his arrest.
The charges against Morse were ultimately dropped. But while he was still in custody, the police obtained a search warrant that enabled them to view the photographs on his memory cards.
The search warrant affidavit -- which is essentially the application for the warrant the police present to the judge -- made no mention of Morse being or even claiming to be a journalist.
First Amendment Project is representing Morse. Just last Friday, we filed on Morse's behalf a motion to quash the search warrant and have Morse's memory cards and photographs returned to him. A hearing is scheduled for May 11.
The First Amendment Project is seeking 1L or 2L students to assist with its litigation and education efforts. FAP is a 501(c)(3) nonprofit organization dedicated to preserving and promoting the fundamental civil liberties of freedom of speech, of the press and to petition the government for a redress of grievances. FAP provides legal and educational resources in these areas to its core constituency of activists, journalists and artists.
DECEMBER 2008
Some of our Victories
in 2008:
* FAP represented the sponsor of a traffic safety initiative
who was sued by his local government as he tried to gather enough signatures to
have the initiative placed on the ballot
* FAP represented a local environmental activist who was
sued for slander by a commercial landlord for a quote in a newspaper article
about a controversy over the eviction of an environmental justice nonprofit
* FAP represented a campaign pamphleteer and helped him
defeat a lawsuit that tried to prevent him from handing out flyers about a
candidate in the days leading up to the election
* FAP advised the producers of the documentary "Citizen
McCaw" and helped them respond to threats of litigation from the subjects
of the film
* FAP represented a woman who was sued by her former surgeon
after she reported his misconduct to the state medical board
* FAP defended a lawsuit against a woman by her
condominium’s management company after she created a website and shared
information about the mismanagement of the building
FAP represented Katherine Lopez, an elected member of Barrio Logan Community Planning Group, an organization created by the City of San Diego to offer community input in all decisions of the San Diego Planning Department. Ms. Lopez was sued for defamation after sending an email urging members of her community to testify before the community planning group if they had any concerns about the way the developer of a proposed residential complex treated his existing tenants. In her email she related some of the concerns that had already been reported to her, including alleged threats to undocumented tenants. Ms. Lopez's conduct in encouraging others to participate in the community planning group process was classic petitioning conduct protected by both the First Amendment and California Civil Code 47. FAP obtained a voluntary dismissal of the lawsuit after informing plaintiff's counsel that an anti-SLAPP motion would be immediately forthcoming.
Upholding the First Amendment right to petition the government for redress of grievances, a federal district judge Monday dismissed a lawsuit filed against a Big Bear Lake environmental activist by a San Diego-based developer. Sandy Steers, a resident of the community of Fawnskin, had been sued by Marina Point Development Associates under the federal Racketeer-Influenced and Corrupt Organizations (RICO) Act, a law designed to root out mob activities. Marina Point claimed that Ms. Steers conspired with officials of the U.S. Forest Service to "derail" the project by urging various governmental agencies to enforce laws to protect bald eagles in the area.
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First Amendment Project is a non-profit advocacy organization dedicated to protecting and promoting freedom of information, expression, and petition.
FAP provides advice, educational materials, and legal representation to its core constituency of activists, journalists, and artists in service of these fundamental liberties.
? Copyright 2005. First Amendment Project. All rights reserved. Imagery ? Copyright 2005 Clinton Fein. All rights reserved. Produced & Designed by Innoventions, Inc
