You’d think that after a prosecutor dismisses a baseless and unconstitutional criminal charge against you, the police would return the property they wrongfully seized in connection with your arrest. Not so for Derek Myers, an Ohio journalist whom police arrested for the “crime” (read: constitutionally protected activity) of publishing audio of courtroom testimony.
In a letter sent Monday, FIRE called on the Pike County Sheriff’s Office to return Myers’ unlawfully seized laptop and cell phone without delay.
Last November, FIRE recounted events that led to Myers’ arrest and seizure of his news-gathering equipment. To recap, Myers is editor-in-chief of the Scioto Valley Guardian, a newspaper serving southern Ohio and one of many media outlets that covered the murder trial of George Wagner IV last year. The judge presiding over the trial gave witnesses the option to not allow streaming or recording of their testimony. One witness, Jake Wagner, opted to disallow it. But someone in the courtroom recorded his testimony anyway.
On Oct. 28, 2022, the Guardian published audio of Wagner’s testimony, noting it “was not recorded by a member of the media” but rather was “submitted to” the Guardian by “a courthouse source who is authorized to have their cell phone in the room.” There is nothing in the public record to suggest Myers himself participated in recording Wagner’s testimony.
Four days later, the Pike County Sheriff’s Office arrested Myers and seized his laptop. The day after that, when Myers arrived at the courthouse, a sheriff’s deputy claimed he had a warrant for Myers’ cell phone and confiscated it.
Myers was charged with violating an Ohio law that makes it a felony to “[u]se, or attempt to use, the contents of a wire, oral, or electronic communication, knowing or having reason to know” the recording was obtained unlawfully. But that law predates a 2001 Supreme Court decision, Bartinicki v. Vopper, which established that the First Amendment broadly protects the right to publish information someone else obtained unlawfully, even if the publisher knew the source broke the law. In fact, the dissent listed the Ohio statute as among those affected by the decision.
As FIRE attorney Adam Steinbaugh explained previously:
This principle is important. If mere knowledge that materials were unlawfully obtained is enough to limit journalists’ publications, it would allow governments to make a broad range of documents and information confidential and then punish anyone outside the government who talks about it. That would make it harder for the public to learn about things their governments do not want them to know. This principle is why, for example, the Los Angeles Times was recently able to publish leaked audio recordings of city councilmembers making racist remarks, even though the source likely recorded the councilmembers unlawfully.
In a win for press freedom, the Pike County prosecutor ultimately declined to pursue the unconstitutional “wiretapping” charge and a county court dismissed the case in August.
But the saga isn’t over. Myers says his cell phone and laptop remain in the custody of the Pike County Sheriff’s Office, which has not said when, if ever, it will return the devices.
By failing to return Myers’ equipment, the sheriff’s office is violating state law, which allows the police to retain seized property only until “it no longer is needed as evidence or for another lawful purpose.” When that time arrives, the police must “ensure that the seized property is returned to the lawful owner without unnecessary delay.”
Now that the court has dismissed the charge against Myers, the sheriff’s office has no need to retain custody of his phone or laptop as evidence or for any other lawful purpose. Especially since, based on FIRE’s understanding of the circumstances, there was no lawful basis for arresting Myers and seizing his property in the first place.
“When supposed guardians of law and order flout constitutional limits on their authority, seizing the tools of expression and suppressing journalism, we’re reminded to never take our freedoms for granted,” Myers told FIRE.
As we explained last year, the arrest and seizure were riddled with issues. Not only had the search warrant expired at the time the police executed it, but the warrant didn’t authorize the search and seizure of Myers’ cell phone. On top of that, the federal Privacy Protection Act and Ohio law shield Myers from searches of his journalistic work product and documentary materials because there is no evidence he did anything more than “receive, possess, or communicate” the audio recording of Wagner’s testimony. And, most importantly, the First Amendment protects Myers’ publication of the audio.
In any event, with the dismissal of Myers’ case, the sheriff’s office has no legitimate basis for continuing to withhold his devices, which presumably contain protected work and are essential to his journalistic activities.
“When supposed guardians of law and order flout constitutional limits on their authority, seizing the tools of expression and suppressing journalism, we’re reminded to never take our freedoms for granted,” Myers told FIRE. “A free press is fundamental to democracy and exposing abuses of power, including brazen attacks on that very freedom.”
FIRE asked the sheriff’s office to address our concerns no later than Nov. 20.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...