Derek Myers runs a small newspaper, the Scioto Valley Guardian, which serves southern Ohio. After he recently posted on the newspaper’s website audio recordings of court testimony recorded by someone else in violation of a court order, local police arrested him, confiscated his electronics and charged him with wiretapping a crime – all in violation of the first amendment of the constitution. federal law, and State Law.
In 2016, Jake Wagner took part in a massacre that killed eight people. As part of a plea agreement, Jake is now testifying against his brother George Wagner IV, who is accused of murder. Following an Ohio court ruling requiring the court to “permit” trials to be broadcast, Myers’ Scioto Valley Guardian broadcast much of the Wagner trial live. But the court gave witnesses the ability to opt out of being recorded, meaning witnesses could prevent their testimony from being streamed or recorded. After Jake Wagner opted in, Myers and other media outlets challenged the order, which an appeals court effectively left in effect.
On October 28, the Guardian released ten minutes of audio – recorded by someone else in violation of the court order – of Jake Wagner’s testimony in court, with this note:
The Guardian obtained part of Jake Wagner’s testimony on his first day on the stand. The Guardian wishes to disclose that the audio was not recorded by a media representative and was transmitted to the Guardian’s newsroom by a court source authorized to have their cell phone in the room.
Myers was arrested on November 1 on a warrant issued by Sgt. Joshua Carver of the Pike County Sheriff’s Office. That same day, Sgt. Carver confiscated Myers’ laptop from a room in the courthouse used by journalists covering the trial.
When Myers entered the courthouse the next day, a sheriff’s deputy claimed that his cell phone had been banned from the courtroom, and when Myers pointed out that he was going to the reporters’ room — not the courtroom — the deputy replied that he got a warrant for the phone and confiscated it.
This seizure was not supported by the warrant.
When Myers entered the courthouse, a sheriff’s deputy claimed his cell phone had been banned from the courtroom.
FIRE obtained both the arrest warrant and the search warrant. The search warrant issued on October 28 was only valid for three days. That meant it expired on October 31 – before The Pike County Sheriff’s Office confiscated the laptop and phone. And the warrant authorized them to seize only one specific “MacBook laptop” — identified by a photo on the warrant — Not the telephone.
But even if the search warrant hadn’t expired, it was invalid a priori. As the Committee to Protect Journalists rightly pointed out in condemning the arrests and searches, federal privacy statutes and an Ohio state statute protect Myers from searches of journalistic “products of work.” In particular, federal law prohibits law enforcement from searching or seizing a journalist’s work product unless they have done so the journalist has committed a crime except “receipt, possession, communication or retention” of the information or material in question.
And courts have made it clear that the First Amendment largely protects the right to publish materials and information wrongfully obtained by someone else, even if it is a journalist knew The source broke the law. in the Bartnicki v. Vopperthe Supreme Court ruled that the First Amendment protected a radio commentator who broadcast a secretly recorded telephone conversation between union officials discussing the need to “call off.” [the] canopies” by school board members opposed to a pay rise. Although the radio host allegedly knew the recording was unlawfully made or obtained – his source claimed the tape turned up in his mailbox – the First Amendment protected the broadcast.
This principle is important. If mere knowledge that materials have been obtained unlawfully is enough to restrict journalists’ publications, it would allow governments to keep a wide range of documents and information confidential and then punish anyone Outside the government talking about it. That would make it harder for the public to learn about things their governments don’t want them to know. This principle allowed the Los Angeles Times, for example, to publish recently leaked audio recordings of city council members making racist remarks, even though the source likely unlawfully recorded the council members.
The Pike County Sheriff’s Office has armed an expired warrant to hit a dubious trifecta: violating the Constitution, federal law, and state law, all in a way that clearly violates applicable law.
So while Myers’ source may have broken the law, there is no evidence that Myers did so. On the contrary, everything indicates that the police had no reason to believe that he made the recording. The warrant alleges Myers violated Ohio Revised Code § 2933.52(A)(3) because he “used[d]’ – that is, publishes – an unlawful recording “with the knowledge or reason to know” that the recording was made unlawfully. If police believed he recorded or requested the recording, they would have charged him under subsections (1) or (2) of the statute dealing with “interception” or “procurement.”[ing]” another person to make an illegal recording.
But how could the police know that this search warrant was not supported by a probable cause or that the search and arrest were unlawful? Easy. In addition to federal and state statutes protecting Myers, the Supreme Court has invalidated an identical statute Bartnicki (and the dissent specifically listed that statute as one of those affected by the court’s decision up to subsection (A)(3)).
That means the Pike County Sheriff’s Office has armed an expired warrant to hit a dubious trifecta: violating the Constitution, federal law, and state law, all in a way that clearly violates applicable law. However, they still haven’t returned the laptop or phone, and Myers still faces felony charges.
Does the First Amendment — or the law in general — mean anything in Pike County?
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or faculty member and are under investigation or punishment for your speech, Submit your case to FIRE today. If you are a faculty member at a public college or university, call them Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you are a college journalist facing censorship or a media rights issue, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).