In April, I reported that Rockingham County, Virginia, prosecutor Marsha Garst had sent a large group of police officers to the offices of James Madison University (JMU) student newspaper The Breeze with an improper warrant to seize photographs of the annual Springfest party near campus. The party had drawn about 8,000 people—students and non-students—and caused quite a bit of public disorder, including violence. There were dozens of arrests, and The Breeze was there taking pictures. The prosecutor seized about 1,000 photos, including many entirely irrelevant ones, but almost immediately gave them back because they had been seized improperly. This Tuesday, after various negotiations, Garst apologized and had to narrow down her request to only the photos relating to eight specific incidents—just 20 photos.
In her public statement, Garst acknowledges that she went with "a number of plainclothes police officers" to the offices of The Breeze "in order to execute the warrant." Then:
After waiting for the Editor to arrive, I requested that she provide copies of the Breeze’s photographs. The Editor declined and, after consulting with an attorney, asserted that the photographs were protected by the reporter’s privilege and could not be seized pursuant to the federal Privacy Protection Act. Acting under the search warrant, I advised the Editor that if the photographs were not provided, I would have no choice but to ask law enforcement to take any steps necessary to retrieve the photographs, including removing and searching all the equipment that potentially contained the photographs.
The Editor then agreed to download the photographs.
As shameful as these actions were, Garst now has honestly and admirably owned up to what she did and has expressed contrition:
I recognize the concerns of the Breeze and its staff, as well as other media sources, for the protection of the Constitution and First Amendment. I express my regret for the fear and concern that I caused the Breeze and its staff. The discussions that have occurred have enhanced my understanding and re-enforced the role of a free press in our democracy.
Garst’s statement also argues that since "the journalist’s privilege is a qualified privilege that can be overcome where the materials sought are essential to our investigation and where we had no other source of the information," she appropriately narrowed her office’s request for photographs and that The Breeze made 20 available "[i]n lieu of receiving a subpoena" for them.
Finally, Garst promises that "my office intends to follow and enforce the Constitution, as well as Federal and State statutes related to law enforcement and criminal investigations. In the future, absent an imminent need to prevent the loss of life or the threat of bodily injury, and information and documents which will be sought from any news agency or publication, including the Breeze, will be done so through the subpoena process accordingly."
Garst’s statement was part of her settlement agreement with The Breeze and other parties (along with $10,000 being paid to The Breeze‘s attorneys in legal fees), but her apology sounds sincere. We hope that Garst has learned her lesson, and we commend the editors of The Breeze for so strongly standing up for their rights.