From the Kba Media-bar Chair

• Citation: Vol. 92 No. 5 Pg. 28
• Publication year: 2023
• Pages: 28

From the KBA Media-Bar Chair 92 J. Kan. Bar Assn 5, 28 (2023) Kansas Bar Journal October, 2023

September, 2023

Newsgathering Carries With It Unique Legal Protections, and Rightly So

By Eric Weslander, KBA Media-Bar Committee Chair

Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Kansas Bar Journal, or its Board of Editors. The material is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment.

In the time since the publication of the previous Kansas Bar Journal, Kansas has become the focus of national and international media attention regarding the Aug. 11 police raid and execution of a search warrant on the offices of the Marion County Record newspaper, as well as the home where the newspaper's publisher, Eric Meyer, lived, along with his 98-year-old mother, newspaper co-owner Joan Meyer. Just hours after experiencing the raid at her home, Ms. Meyer collapsed from a heart attack and died.

For myself and others who have worked in journalism, and for those who care about the freedom of the press, to call the situation "alarming" is an understatement. Here is an overview of the legal issues involved, and what I am hopeful judges, attorneys, and others will keep in mind about the unique legal protections that exist in our country and state for the news media.

First, it is critical for judges to be aware that the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa et seq (PPA), generally prohibits newsroom searches except in strictly limited situations. Up until the days following the search of the Marion County Record offices, the statute was little known and discussed in Kansas, given that newsroom searches are extremely rare "” so rare that the Reporter's Committee on Freedom of the Press does not even track or keep statistics on them.

Enacted as a legislative response to a Supreme Court decision upholding broad law enforcement access to the files of the Stanford Daily student newspaper,^[1] the PPA reinforces and codifies our public policy of allowing journalists to do their work without fear of government retribution or oversight. The Act makes it unlawful for the government, in connection with investigation of an alleged crime, to search for or seize any "work product materials" possessed by someone

28 Kansas Bar Journal

reasonably believed to have a purpose to disseminate to the public "a newspaper, book, broadcast, or other similar form of public communication[.]"^[2]

The idea of "work product materials" should be a familiar concept for attorneys, except this is the journalistic version. The PPA defines work product materials, in relevant part, to mean: materials that are "prepared, produced, authored, or created" in anticipation of being communicated to the public; are possessed for purpose of communicating the material to the public; and include mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored or created the material.^[3] In other words, it encompasses reporters' notes, ideas, and draft stories, all of which are the lifeblood or oxygen of daily journalism and reflect reporters' "work in progress" before the news ever gets published.

The statute provides that journalists' "work product materials" may only be...