stLouISTA judge finally called a newsroom raid what it is
When a judge orders a journalist not to publish a story, everyone recognizes it as a prior restraint — the most serious First Amendment violation there is, according to the Supreme Court, and one that has never been allowed against the press. But when the government kicks down a reporter’s door and walks out with computers, or seizes a news photographer’s camera at a protest, that’s often seen as something different.
It’s not. In both cases, the reporter is left unable to publish news, which is the exact harm that the prohibition on prior restraints seeks to avoid. Magistrate Judge William Porter’s February order restricting how prosecutors could search materials seized from Washington Post reporter Hannah Natanson recognizes this reality. Porter treated the seizure of her devices, containing terabytes of data, source communications, and works in progress, as a prior restraint — a recognition long overdue, and one that courts have been notably reluctant to make explicit.
We’ve been critical of other aspects of Porter’s order. He should have required that Natanson’s materials be returned outright and should have sanctioned prosecutors for omitting the Privacy Protection Act of 1980 — a law that prohibits exactly this kind of raid in most circumstances — from their warrant application. He admitted the Trump administration has a track record of falsely claiming national security threats, but deferred to them anyway. But at least he framed the issue correctly before his anticlimactic conclusion.
There’s actually an argument that seizures are worse than orders not to publish. Traditional prior restraints are so nakedly unconstitutional that news outlets sometimes opt to just ignore them, dare the court to hold a journalist in contempt of court for reporting the news, and publish anyway. That happened in Colorado, where a reporter from BusinessDen defied an order to return court records the court itself had released. The judge backed down.
But you can’t choose to ignore a seizure and risk contempt. When the FBI has your hard drives, you don’t have the option of printing the story anyway.
Plus, a traditional prior restraint targets specific information that the government claims (almost always falsely) poses some kind of extraordinary threat, the most famous example being the Pentagon Papers. A seizure of a modern journalist’s devices captures everything from stories in progress to research notes to contacts, most of which have nothing to do with whatever law enforcement is investigating. The seizure of Natanson’s materials likely killed far more stories than any targeted court order ever could have, which also increases the potential chilling effect among other journalists’ worried about losing not just one scoop, but all of their hard work, by publishing materials that upset the government.
The seizure of Natanson’s materials likely killed far more stories than any targeted court order ever could have.
Florida journalist Tim Burke faced the same predicament. Agents raided his Tampa home in 2023 and walked out with essentially every piece of equipment in his newsroom. The seized data included reporting that had nothing to do with his purported crime of violating computer fraud laws by publishing newsworthy information (outtakes of Tucker Carlson’s interview with Ye, formerly Kanye West, where the recording artist went on antisemitic rants) that he found on an unencrypted website.
The seizure was, for all intents and purposes, an indefinite prior restraint on his First Amendment right to report and publish newsworthy information. The government prevented Burke from reporting for more than nine months before even indicting him. Then the indictment sought forfeiture of his computers, claiming that his reporting in progress was criminal “contraband,” an argument the government is now floating in Natanson’s case as well.
The raid of the Marion County Record is another example. Police in Kansas walked out with computers, phones, and reporting materials, forcing the newspaper to pivot in order to publish its next edition on time. It makes little difference to the impacted journalists whether the government says “you can’t publish this” or “you no longer have what you want to publish.”
Less dramatic infringements can have the same effect — journalists covering civil unrest, for example, might be working with a single phone or camera. Seizure of those devices stops them from publishing their coverage (and potentially exposes their sources) just like a newsroom raid. The latter are relatively rare, but the former happens all the time.
Porter is not the first to recognize this dynamic. The Supreme Court has said that seizures of materials protected by the First Amendment run “the risk of prior restraint” and can’t be justified by probable cause alone. As one federal appellate court put it, “The government need not ban a protected activity … if it can simply proceed upstream and dam the source.”
But the judge may be the first to put it so plainly in the newsgathering context. He deserves credit for understanding the constitutional implications of silencing Natanson and not shying away from expanding the legal concept of “prior restraints” to seizures of electronics that the courts that developed that jurisprudence decades ago could never have anticipated. Maybe next time, he’ll follow through with the right remedy — ordering the immediate return of all the seized materials and sanctioning the prosecutors who took them under false pretenses.