As reported this past weekend, on Friday the San Francisco Police Department sent an armed detail to sledgehammer its way into a journalist’s home and office, handcuff him and cart off his phone, computer hard drive, notebooks and other documentation. The police sought to learn who had leaked their report about the death of the city’s public defender to selected local media, which disclosed that this widely admired official fell ill in the apartment of a woman not his wife and had traces of alcohol and cocaine in this system.

Those raids, following a storm of accusations against the police for allegedly releasing the report to smear their longtime nemesis, were authorized by search warrants obtained by either misrepresentation by the police or a judicial disregard for the law protecting journalists’ confidential sources.

That shield in Penal Code section 1524(g) flatly forbids magistrates from issuing warrants to search “for any item or items described in Section 1070 of the Evidence Code.” The latter provision protects journalists from being held in contempt for refusing to honor subpoenas for their unpublished work product—including but not limited to “all notes, outtakes, photographs, tapes or other data of whatever sort.”

The search shield was enacted promptly after the U.S. Supreme Court held, in Zurcher v. Stanford Daily (1978),  that the First Amendment itself does not preclude law enforcement officials from using search warrants, otherwise lawfully obtained, to search newsrooms or other places for unpublished information acquired by journalists.

But California’s journalistic shield from searches for unpublished information is no protection if the magistrate is unaware of that law, or of what the search is targeting, or knows the law but finds a rationale for disregarding it. That the police in this case appear to have been aware of both is suggested by the fact that, according to the New York Times, their affidavits described the information sought as concerning “stolen or embezzled” property rather than news fodder.
Although the search warrant affidavits are under seal and the issuing magistrates aren’t talking, two sources who have seen the warrants indicate that the police let the magistrates know that the premises to be searched were those of a journalist.

Local press coverage reacting to the incident questions the brute force of the entry, the sheer volume of the material seized and the accompaniment of two FBI agents on the raid. Little has so far been said about the breach in press freedom opened by the search warrant issued in violation of the Penal Code prohibition.

Certain defenders of the warrant issuance argue that the broker whose property was raided was not engaged in protectble journalism by receiving and then selling a copy of the police report, not having acquired the information as a product of original news gathering or editorially processed it for publication. But that distinction would probably not withstand a court’s scrutiny.

In a roughly comparable case, the California Court of Appeal concluded that the publishers of two Internet web sites who publicly posted copies of documents showing Apple Computer product plans were protected from the company’s subpoenas for information showing which if any Apple employees had leaked the records. The court in O’Grady v. Superior Court (Apple Computer, Inc.) (6th Dist. 2006) rejected Apple’s contention that the information-gathering activity of O’Grady’s PowerPage and AppleInsider sites was not the kind of “legitimate” journalism the law was intended to protect.

We decline the implicit invitation to embroil ourselves in questions of what constitutes “legitimate journalis[m].” The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish “legitimate” from “illegitimate” news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

Nor was the court persuaded by Apple’s argument that the posting of full documents on these sites showed no authentic editorial discretion.

Apple asserts that petitioners merely reprinted “verbatim copies” of Apple’s internal information while exercising “no editorial oversight at all.” But this characterization, if accepted, furnishes no basis for denying petitioners the protection of the statute. A reporter who uncovers newsworthy documents cannot rationally be denied the protection of the law because the publication for which he works chooses to publish facsimiles of the documents rather than editorial summaries. The shield exists not only to protect editors but equally if not more to protect newsgatherers. The primacy Apple would grant to editorial function cannot be justified by any rationale known to us.

Moreover, an absence of editorial judgment cannot be inferred merely from the fact that some source material is published verbatim. It may once have been unusual to reproduce source materials at length, but that fact appears attributable to the constraints of pre-digital publishing technology, which compelled an editor to decide how to use the limited space afforded by a particular publication. This required decisions not only about what information to include but about how to compress source materials to fit. In short, editors were forced to summarize, paraphrase, and rewrite because there was not room on their pages to do otherwise. Digital communication and storage, especially when coupled with hypertext linking, make it possible to present readers with an unlimited amount of information in connection with a given subject, story, or report.