Two cases test “shield law”

The police raid of Gizmodo editor Jason Chen’s Fremont home after he had reported on the prototype iPhone has given legal analysts much to discuss.  From a criminal law point of view, there is the issue of whether Chen had committed a crime.  From a Fourth Amendment standpoint, there is the issue of whether the raid and search warrant were legal.  And with regard to tort law, there is the issue of whether the San Mateo Police Department is liable for misconduct.  Max Fisher of the Atlantic Wire provides an excellent overview of many of the legal issues involved in the case.  One of the more interesting issues concerns whether Gizmodo should have been protected by the journalist shield law.  Orin Kerr, a blogger for the Volokh Conspiracy, provided a thoughtful discussion on whether the shield law should have applied.  But because of the attention that this case has commanded, another situation implicating the journalist shield law might easily be overlooked.

Following an April 10 riot near Virginia’s James Madison University where more than a dozen police officers were injured, police and prosecutors appeared at the student newspaper’s offices with a search warrant and seized more than 900 photographs of the event.  What makes this case interesting is that the fact situation mirrors that of a 1971 Bay Area case that made it all the way to the U.S. Supreme Court in Zurcher v. Stanford Daily (1978) 436 U.S. 547.  In Zurcher, officers from the Palo Alto police Department searched the student run newspaper pursuant to a warrant, looking for photographic evidence of an earlier riot where several police officers had been injured.  The question for the High Court was whether a search warrant could be executed against a party that was not involved in the unlawful acts.  The Court answered to the affirmative in a five-three decision. 

Perhaps the only significant difference between the situations at James Madison University this year and Stanford University in 1971 is not in the facts, but in the law itself.  Following the unpopular Supreme Court decision, Congress passed the Privacy Protection Act of 1980 which shields journalists and newsrooms from government searches.  In light of this law, it would be interesting to see how our current Supreme Court would rule on James Madison University case today.  In the unlikely event that the case were to make it all the way to the Supreme Court, it would be before a completely different Court: the only member of the Zurcher Court still sitting today is John Paul Stevens who is set to retire at the end of the summer term.  Stevens wrote a dissent in the 1978 decision.

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