From: San Francisco Chronicle
By: Bob Egelko, 05/15/2019
The San Francisco police officers who raided freelance journalist Bryan Carmody’s home last week thought they had everything they needed: a judicial search warrant, and evidence suggesting Carmody had obtained a leaked police report on the death of Public Defender Jeff Adachi and sold it to local television stations.
What the officers lacked, apparently, was an appreciation of California’s shield law, which allows journalists to withhold their sources and unpublished information and protects them from search warrants.
Journalists “have to be able to perform their work without fear of being compelled to explain to the state or show the state how they went about their business,” said David Snyder, executive director of the First Amendment Coalition, a free-speech and media support group based in San Rafael. “They have to be free from state compulsion to give them their sources of information.”
That’s the gist of the shield law, enacted by legislators or court rulings in nearly every state. California’s is among the strongest and one of the oldest, passed by lawmakers in 1935 and written into the state Constitution in 1980 by more than 70 percent of the voters — a majority virtually unimaginable in the current era of widespread public suspicion and daily White House vilification of the “fake news media.”
“A free press protects our basic liberties by serving as the watchdogs of our nation,” advocates of the 1980 measure said in the ballot pamphlet.
Nationally, by contrast, Congress has not enacted a shield law, and the Supreme Court has ruled that the First Amendment right of a free press does not protect journalists’ refusal to disclose their sources. In 2006, a federal judge in San Francisco sent blogger Josh Wolf to jail for 7½ months for contempt of court for refusing to turn over videos he had taken of a 2005 protest that included an alleged attempt to set a police car on fire. It was the longest confinement ever for a journalist in such a case.
The state law gives protections to journalists that ordinary citizens lack: the right to refuse to disclose the source of their information and to withhold information they have obtained but have not published or submitted for publication.
The law also bars enforcement against journalists of search warrants, which police can obtain from judges based on probable cause that a crime has been committed. Instead, officers must get a subpoena to summon the journalist to court, where a judge can decide if the information is protected by the shield law — and it’s almost always protected, unless the journalist broke the law to get it.
The law’s definition of journalist is not precise. An Alameda County Superior Court recently extended shield protections to an animal-rights blogger, ruling that he was engaged in “newsgathering activities” for his own “periodical publication.” But the courts have not yet determined the full scope of protections for do-it-yourself publishers.
“In this new age with citizen journalists, everybody having a cell phone and posting information on current events, the line gets very blurred,” said James Wagstaffe, a San Francisco attorney who specializes in First Amendment issues and teaches journalism at San Francisco State University. By his standards, Wagstaffe said, journalists are writers who are “vetted, they fact-check, they have accountability.”
But Snyder said it’s clear that freelancers like Carmody are covered. Carmody obtained a report on Adachi’s death from an unnamed police source and sold the rights to three San Francisco TV stations. He’s made his living that way for 30 years.
“Carmody is in the business of selling stories to news outlets. That’s what freelancers do, how they put food on the table,” Snyder said. “You don’t have to be on salary to a news organization to be entitled to the privileges of the shield law.”
Investigating the leak, police obtained search warrants from Superior Court Judges Victor Hwang and Gail Dekreon to search Carmody’s home and business. They showed up at his home with a warrant Friday, and after he refused to reveal his source, they returned with a sledgehammer.
Carmody said officers wrecked some of his equipment and effectively sidelined him from his work for months. According to records obtained by The Chronicle, police seized more than 60 items, including computers, cameras and cell phones. But their court affidavit that obtained the warrants remains sealed, and police haven’t said publicly whether they told the judges of Carmody’s media connections.
Two sources familiar with the warrants told The Chronicle that police made it known to the judges that Carmody was a media stringer. The judges haven’t commented.
The search was “part of a criminal investigation into the illegal release of the confidential Adachi police report and subsequent sale to members of the media,” the Police Department said in a statement. “This action represents a step in the process of investigating a potential case of obstruction of justice along with the illegal distribution of confidential police material.”
Michael L. Rains, a Pleasant Hill attorney who has represented police in numerous cases, said the San Francisco officers appear to have proceeded carefully.
“Police did the right thing by applying to a judge,” Rains said. “The only way I can think the judge could have issued a search warrant is if the affidavit said we had strict controls on disclosure of this report, that it was not to be released to any member of the public or the media. ... Without knowing what was in the affidavit, it’s impossible to know.”