VIRGINIA — James Madison University’s student newspaper,The Breeze, and the Rockingham County Commonwealth’s Attorneyannounced an agreement today that will put an end to a legal battle overphotographs seized by police officers.
The commonwealth will pay $10,000 in attorney’s fees incurred in adispute over the seizure of Breeze photographs taken at a street festivalthat resulted in a riot in April. Marsha Garst, the Commonwealth’sAttorney, issued an apology today and acknowledged the authorities’mistakes in the initial investigation.
The dispute began when Garst executed a search warrant in TheBreeze’s newsroom on the morning of April 16, burning more than 900photos onto a CD — only some of which documented the April 10
“Springfest” of interest to the authorities.
Garst announced today that, after negotiations, The Breezewill only turn over 20 photographs. The newspaper will publish thesephotographs on its website. Garst said that her focus, as well as that of theother authorities, was not to cause commotion for The Breeze, butsimply to obtain the photographs necessary for identifying violent persons atthe riot.
“As a prosecutor, officer of the court, and elected official of thecommunity, I recognize the concerns of the Breeze and its staff, as wellas other media sources, for the protection of the Constitution and FirstAmendment,” Garst said today in her announcement. “I express myregret for the fear and concern that I caused the Breeze and itsstaff.”
Editor-in-chief for the Breeze Katie Thisdell said she feelsGarst’s announcement was satisfactory.
” I am pleased that the Commonwealth’s Attorney has expressedregret over the fear and concern caused by the seizure,” she said.
Student Press Law Center volunteer attorney Seth Berlin, from the law firmLevine Sullivan Koch & Schulz, who represented The Breeze, said thePrivacy Protection Act mandates that materials from a newspaper be gathered byway of a subpoena, not search warrant, so that the publication has time to bringa challenge.
Frank LoMonte, Student Press Law Center executive director, said theimportant thing about this case is that it emphasizes that there’s a rightway and a wrong way to gather information from newsrooms.
“The right way is to seek a subpoena, which gives the journalists afair opportunity to get in front of a judge and make their best argument as towhy the materials might be privileged,” LoMonte said. “The PrivacyProtection Act specifically references the subpoena process, and that’sclearly the authorized way of going about it.”
Garst said today that “absent an imminent need to prevent the loss oflife or the threat of bodily injury,” any information being sought from apublication will be done through the proper process of a subpoena.
“Out of the unfortunate raid in April, this is actually a greatresult for the newspaper and its students, because they basically succeeded innarrowing dramatically the number of photographs that would need to be turnedover to the commonwealth,” Berlin said. “And [the paper] has securedwhat I think is the most important thing — an acknowledgement that this maynot have been the way to go, and that she [Garst] won’t do it this way inthe future.”
The photographs seized during the April 16 raid were turned over to a thirdparty, where they have remained since April. Thisdell said the compact discs ofthe 962 photos seized have been returned to the Breeze.
“I’m glad we were able to solve this informally throughdiscussions with the commonwealth attorney, and I’m especially gratefulfor our attorney and all the hard work he put into this for us,” Thisdellsaid. “We are also pleased that local law enforcement officials havepledged that in the future, they will use the subpoena process. This will allownews organizations, such as we did here, to negotiate over the scope of therequest.”