A federal judge unsealed records on Tuesday revealing that the Department of Justice attempted but failed to secure search warrants targeting journalists Don Lemon and Georgia Fort, as well as three protesters involved in the Cities church demonstration in St. Paul, Minnesota, last winter.
The court rejected the search warrants twice. In unusually blunt opinions, Magistrate Judge John Docherty stated that officials did not meet basic legal standards and criticized them for failing to mention a federal law that could have rendered some of the warrants illegal. The Department of Justice subsequently withdrew the requests.
The Department of Justice's blatant disregard for the Constitution and its attempt to conceal the law is deeply troubling, even if the department's recent track record makes it less shocking. With increasing government attacks on freedom of speech and declining independence within the Justice Department, it is more crucial than ever for judges to rigorously scrutinize government requests, for prosecutors to face real consequences for abusing their power, and for Congress to enact strong laws protecting First Amendment rights.
Details of the Search Warrant Applications
The recently unsealed records in the Cities church protest case illustrate how the Justice Department is using the prosecution of protesters and journalists to directly threaten freedom of speech.
The first set of applications sought information about YouTube channels used by Lemon and Fort, as well as a third channel allegedly belonging to protester William Scott Kelly. In addition to information about these individuals, the government also demanded information about their subscribers, including names, addresses, and emails of people who simply watched their channels.
The government's justification for needing such information is questionable, as watching a YouTube channel is not a crime and is clearly protected by the First Amendment. The obvious effect of demanding subscriber information in a criminal inquiry is intimidation, aiming to make people think twice before viewing independent journalism or speech critical of the government.
The second set of warrant applications raised another free speech issue. The government again targeted Lemon and Fort's YouTube channels but failed to mention a federal law that bars most search warrants targeting journalists and others who publish information to the public.
The Privacy Protection Act of 1980
This law exists for a reason. In most cases, it requires the government to use a subpoena instead of a search warrant when making legal demands to the press. This distinction matters because the news media can challenge subpoenas in court before the government gains access to sensitive materials, whereas search warrants can only be challenged after the fact, once sources have been exposed and newsroom files seized.
The government's failure to mention this law was not a mistake or an isolated incident. Prosecutors told Docherty that they considered whether the statute prohibited the warrants but decided they did not have to mention the issue to the court. Similarly, federal prosecutors failed to inform a Virginia judge about the act when they obtained a search warrant to raid Washington Post journalist Hannah Natanson's home. That judge later stated that he might have ruled differently had he known about the law.
It is wrong to refuse to inform judges about a statute designed to protect First Amendment rights. Attorneys are not supposed to hide relevant law from courts and hope judges overlook it, especially in secret warrant application proceedings where there is no opposing attorney to object. Doing so violates prosecutors' ethical duties and undermines the Justice Department's supposed commitment to justice.
Judicial Scrutiny and Accountability
For years, courts have given Justice Department prosecutors a presumption of regularity, assuming they act in good faith. Cases like this one are just one of many examples showing why that assumption is no longer justifiable. As the Justice Department continues to abuse the criminal justice system to target government critics, whistleblowers, and journalists, judges must refuse to rubber-stamp search warrant applications, especially in cases where First Amendment rights may be implicated.
Prosecutions of journalists for doing their jobs, such as those of Fort, Lemon, and photographer Junn Bollmann (who was also arrested for covering the Cities church protest), should be thrown out on First Amendment grounds.
Courts must also unseal records that reveal government incompetence, lack of ethics, and violations of constitutional rights. The only reason the public knows about the Justice Department's actions in this case is because Judge Docherty took it upon himself to unseal the records. Other abuses may be flying under the radar in still-sealed court records around the country.
In addition, judges can sanction attorneys who violate their ethical duties and refer them to attorney ethics boards for discipline. Although attorney ethics committees have so far shown little appetite to hold Justice Department attorneys accountable for misconduct, that could change if respected jurists urge them to do so.
Congressional Action Needed
Finally, Congress can prohibit legal gamesmanship around legal protections for press freedom that has become commonplace at the Justice Department. The Privacy Protection Updates Act would require the government to affirmatively disclose the act when seeking search warrants targeting the press and others who publish information. Lawmakers should pass this essential bill to prevent prosecutors from hiding the law from judges.
In this case, a judge stopped one instance where the government tried to stifle constitutional rights. Collective effort is needed to stop the next one.
