A note from Executive Director David Snyder
We went to court last week to stand up for press freedom after police arrested Northern California photographer Jeremy Portje and seized his camera gear.
By itself, the arrest raised a number of concerns. Portje was reportedly filming police in public at a homeless encampment — activity that is protected by the First Amendment. Then, police seized Portje’s camera gear and electronic devices. Regardless of the reason for the arrest, this seizure left Portje vulnerable to an uncontested and unfettered search, which is just what police attempted next, by obtaining a search warrant to sift through years’ worth of Portje’s work.
California law is clear on this: It absolutely bars the use of search warrants for a journalist’s unpublished materials.
After undertaking several weeks of advocacy in support of Portje and his criminal defense lawyer, we are pleased to report two key developments. First, on Dec. 28, Marin County District Attorney Lori E. Frugoli announced that her office declined to pursue charges against Portje, who was booked a month before on suspicion of battery of a police officer and obstructing police work. Second, on Dec. 29, counsel for the government said in court that police had not and would not review the contents of Portje’s gear and would work out an agreement with Portje’s attorney to arrange its prompt return.
We welcome this result. But as I told the San Francisco Chronicle, police should never have had these materials in the first place and should never have been able to get a search warrant. FAC, joined by the Northern California Chapter of the Society of Professional Journalists, put authorities on notice of Portje’s status as a journalist days after his arrest, and yet police got a judge to sign a warrant. (Read more news coverage in the Marin Independent Journal and the Pacific Sun.)
In our amicus curiae letter supporting Portje’s motion to quash the warrant, we explain that in order to preserve the independence of the press, both state and federal law require subpoenas, not search warrants, for journalistic materials. A subpoena process ensures journalists can contest the seizure before a search takes place, “thus providing an essential opportunity to protect the fundamental and constitutionally protected rights afforded by the Shield Law—rights that implicate broader democratic principles and liberties.”
We continue to monitor the situation and to demand accountability.
– David Snyder
Note: If you are a journalist or attorney in need of support to contest a subpoena or search warrant, contact FAC via our Subpoena Defense Initiative. FAC makes referrals to qualified pro bono counsel and conducts legal clinics to train attorneys on shield law protections.