On May 31, 2010, the Commonwealth of Virginia and James Madison University's (JMU) student newspaper reached a settlement in a six-week dispute over access to hundreds of photos of a campus riot in April. Using a search warrant, the Commonwealth's Attorney had seized the photos in a raid on April 16.
As part of the settlement agreement, The Breeze student newspaper voluntarily turned over 20 photos after prosecutors convinced the paper's staff and attorney that it legitimately needed them to prosecute crimes. For its part, the Commonwealth agreed to reimburse the paper $10,000 in legal expenses, and the Commonwealth's Attorney apologized to the paper for the incident, pledging to use subpoenas rather than search warrants in similar cases in the future. (For more on the initial newsroom raid, see "Police Raid Blogger's Home, College Paper's Newsroom," in the Winter/Spring 2010 issue of the Silha Bulletin.)
The incident that gave rise to the legal battle was Springfest, an April 11 block party on JMU's campus that attracted 8,000 attendees. A drunken riot erupted, including multiple acts of violence, physical assaults involving thrown beer bottles, and willful property damage like the burning of couches. Suppressing the riot required 200 police officers with riot gear and tear gas, according to an April 12 story in The Breeze. According to an April 13 report from the website Uwire, rioters also threw beer bottles and trash at police.
Staff photographers from The Breeze snapped 962 photos of the riot, which were then stored on newsroom computer hard drives. On April 16, five days after Springfest, Commonwealth's Attorney Marsha Garst phoned The Breeze's Editor-in Chief, Katie Thisdell. Garst explained that she was prosecuting some people arrested in the riot, and asked Thisdell to voluntarily turn over all 962 photos to her office. Garst told Thisdell that some of the photos could provide evidence of crimes her office was investigating. Thisdell declined to disclose the photos, according to an April 16 story in The Breeze. Thisdell said she believed that the Federal Privacy Protection Act (PPA), 42 U.S.C. § 2000aa, prevented Garst from compelling disclosure of the photos. The PPA states that, with certain exceptions, the government may not execute a search warrant for "documentary materials" when they are in the possession of a person who intends to disseminate them to the public. The statute's definition of "documentary materials" includes photographs.
Later that day, Garst obtained a search warrant for The Breeze's newsroom, and executed it personally, along with several campus and Commonwealth police officers, Thisdell told the Silha Bulletin on June 25. Garst told Thisdell that if she did not produce the photos on disk, Garst's office would seize all computers in the paper's office and extract the photos. Thisdell chose to comply with the warrant, she said, to prevent the paper from halting operations due to lack of equipment.
The weekend after the seizure, Thisdell said she contacted the Student Press Law Center (SPLC), which put The Breeze in touch with the attorneys who helped to negotiate the eventual settlement. On April 19, the Society of Professional Journalists (SPJ) sent a letter to Garst expressing outrage at the seizure. The letter said that SPJ acknowledged "the need to investigate an out-of-control public event where crimes may have been committed," but argued that "there are more appropriate tools available to law enforcement than to bully the student newspaper."
The parties in the dispute reached the settlement agreement on May 31. According to a June 1 story in The Breeze, under the agreement, "20 photos ... have been released to the Commonwealth's Attorney's office. The remaining 942 photos initially seized will be returned to The Breeze and not released to authorities." The 20 photos were also posted on The Breeze's website for public viewing on May 31, according to a June 1 post on The Washington Post blog Campus Overload. According to The Breeze, the 20 photos were turned over because Garst "showed that she had exhausted all other sources and The Breeze's photographs were the only sources of some information" needed to prosecute eight specific instances of violence including vandalism, destruction of property, and assault.
Virginia does not have a statutory shield law for journalists, but the state courts have recognized a qualified common law privilege. According to The Breeze, the paper's attorney, Seth Berlin, said the decision to release the 20 photos is consistent with Virginia law. Berlin said the paper decided to turn over the 20 photos voluntarily rather than request a subpoena because The Breeze was able "to get the Commonwealth's attorney to narrow down her target from every photo to only a few ... [and] because a subpoena might have led to possibly more photos being turned over."
According to a June 2 story by The Associated Press, the Commonwealth will pay $10,000 to The Breeze to cover expenses the paper incurred fighting the seizure. In addition to the monetary settlement and the agreement regarding the photos themselves, Garst apologized in a statement for the "fear and concern that [she] caused The Breeze and its staff," as a result of the initial seizure, and pledged to use subpoenas rather than search warrants to obtain similar information from journalists in the future, unless the Commonwealth was faced with an "imminent need to prevent ... loss of life or the threat of imminent bodily injury."
Reactions to the settlement were positive on both sides of the dispute. Berlin told the Waynesboro News-Virginian that he commended Garst for apologizing, and Thisdell told The Breeze that she is "pleased we were able to reach this settlement." In her statement regarding the agreement, Garst said the dispute "enhanced [her] understanding and re-enforced the role of a free press in our democracy."
- Geoff Pipoly
Silha Research Assistant