May 24, 2019

Overzealous San Francisco police recently brought a sledgehammer to the front door of a journalist. A subpoena would have been more appropriate.

It’s a case study in how messy the First Amendment is — and how much we must defend it from threats both legal and other. This strategy of going after an unlikeable figure is playing out on a larger stage as well, as the U.S. government charges Julian Assange with espionage for publishing classified documents stolen by intelligence analyst Chelsea Manning.

The subject of the raid in San Francisco, freelance videographer Bryan Carmody, may turn out in the end to be a less than a sympathetic poster boy for the cause of noble journalism. Carmody is a stringer who works mostly nights chasing video of the aftermath of homicides, horrific traffic accidents, fires and other mayhem. He’s an often unnamed, yet critical cog in the “if it bleeds it leads” local television machine.

As if that’s not enough bad PR, in a press conference this week, San Francisco police said they believe Carmody committed a crime, insinuating that he actively conspired to steal the police report, rather than simply being a recipient. Carmody has denied doing anything illegal. When I talked to him on the phone Thursday, he said because of the threat of prosecution, he’d been advised by a criminal attorney to not comment on the case.

But here’s the thing, even if Carmody did commit a crime, the seizure and subsequent search of every electronic device he owns — including his current cell phone, his old cell phones, a stack of old internal and external hard drives, his computers, and even his girlfriend’s old iPod — is a gross violation of the federal rules for searching journalists that have grown out of the court’s interpretation of the First Amendment.

“As I read the federal statute it’s designed to keep the police from doing these kinds of searches (on journalists) and he qualifies,” David McCraw, the lead attorney for The New York Times, told me Thursday morning during a phone interview. “It’s a law that specifically was designed to limit to very, very, very narrow circumstances when a search warrant can be used to gather editorial work product.”

Federal courts ‘established long ago that law enforcement must use a subpoena, not a search warrant, when seeking information from a journalist, even when they suspect that journalist committed a crime, McCraw said. A subpoena is a precise legal instrument that compels a person to turn over certain material. A search warrant is more of a blunt object, just like the sledgehammer the cops used to bash in Carmody’s security gate.

“The reason for that was so the press could have an opportunity to object prior to the seizure,” McCraw said. “That’s the law and it’s on the books and the authorities should play by the rules.”

By taking all of his equipment and searching all of his material, the cops create a specific chilling effect on Carmody’s work and possibly a more extensive impact on other reporting in San Francisco. The name of every confidential source that’s ever talked to Carmody on any story was potentially revealed to the San Francisco police. This includes people who might have provided other journalists with important information necessary to hold police accountable for corruption, a lack of competence or use of force.

Think any of those sources will ever risk their jobs and talk to Carmody or any other journalists in the future? Their jobs could be in danger right now.

If the cops had obtained a subpoena, Carmody would have had the chance to argue his right to keep his source confidential; and if that had failed he most certainly would have prevented the wholesale intrusion into unrelated material.

So, even though he got all his equipment back this week, and even if the courts ultimately decide that this search was illegal, Carmody’s ability to continue to work as a journalist is perhaps forever impaired by the San Francisco Police Department’s raid.

For those just catching up, here’s the critical information at the root of this furor: After the celebrated San Francisco Defense Attorney Jeff Adachi died suddenly on February 22, several Bay area television stations reported the details contained in a leaked 16-page police report, including the address of the private apartment where Adachi collapsed and the fact that he was with a woman who was not his wife.

This case is more Bonfire of the Vanities than Pentagon Papers.

And of course that’s the point. After publicly elected officials loudly criticized the SFPD for leaking the report to harm Adachi’s reputation and demanded they investigate, the police needed to demonstrate they were doing something to find the leak in their own ranks. Apparently their internal investigations failed, as did their request for Carmody to voluntarily reveal his source.

It’s important to note here that the police did not barge into the San Francisco Chronicle and seize equipment and documents, even though a Chronicle reporter also obtained a copy of the same report.

Going after Carmody, a lone wolf without legal protection, was a lot easier. Just yesterday the U.S. Department of Justice employed the same strategy in charging Julian Assange with espionage. “The calculation by the Department of Justice is that here’s someone who people don’t like,” media attorney Theodore J. Boutrous Jr. told the New York Times.

Going after Carmody gave the SFPD the ability to say they were aggressively pursuing the leak. It also gave them a chance to effectively neuter a journalist who frequently reported on their work.

Some supporters of the police raid have suggested that Carmody doesn’t deserve to be treated like a journalist because he is not attached to a single newsroom, and because he sells raw material to other newsrooms, as opposed to completed stories or packages. McCraw disagrees. In fact, Carmody holds a press pass granted by the SFPD.

Dozens of news organizations and professional associations signed a friend of the court letter, pointing out the police raid violated both California and federal law. McCraw was among the signers.

While the lawyers and journalists seem reasonably certain that a court review will eventually find the search improper, I am more concerned about the steady chipping away of public support for journalism.

So is McCraw. He believes the court of public opinion poses more of a threat than bad case law. He makes this very argument in his recently published book, “Truth In Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts.

“This case reminds me a little bit like when everybody rallies for Hustler magazine when there’s an important free press issue. You don’t feel good about embracing that particular defendant, but you gotta embrace the press,” McCraw said. Later he added: “I think raising doubts about the press is a dangerous and toxic approach. If the press isn’t believed it really loses its power just as if it was restrained.”

If that’s the case, you can see how the First Amendment takes a hit and how the police in San Francisco get a win, even if they lose in court. It’s not a big hit. By continuing to argue publicly that their raid was justified, and that this particular journalist is a bad person who shouldn’t be trusted, the SFPD adds to the public confusion over the role of the press.

It’s one more swipe at the messengers and one more reason for someone to doubt those who deliver the news.

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Kelly McBride is a writer, teacher and one of the country’s leading voices when it comes to media ethics. She has been on the faculty…
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