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.