Open Up, It's the Police!

A search in Boise revives concerns about protecting sources

When the Supreme Court ruled in Zurcher vs. Stanford Daily two years ago that police had the right to make unannounced searches of newsrooms for information useful in criminal investigations, the outcry from journalists, publishers and civil libertarians across the country was deafening. Of several Burger Court decisions that have narrowed the free-press protections of the First Amendment, they believed that this one presented the greatest threat to a reporter's ability to protect confidential sources. But then, as news organizations braced for an anticipated wave of court-inspired raids, a curious thing happened: none occurred.

Until now. Sheriffs deputies in Boise, Idaho, armed with a search warrant, burst into television station KBCI'S newsroom two weeks ago. They were looking for video-taped interviews with inmates at the Idaho state penitentiary conducted by Reporter Bob Loy during a prison riot last month. As a dismayed Loy and his colleagues watched helplessly, the police spent 90 min. rummaging through their files and desk drawers before locating the tapes they wanted. Last week KBCI filed a civil complaint against the state and the local prosecutor claiming infringement of their First Amendment rights. Only two months earlier, police in Flint, Mich., had raided a local printing firm looking for information related to an article in the Flint Voice criticizing the mayor. After two such incidents in so short a time, many journalists are worried that police in other cities will now start to launch their own raids.

The Boise swoop has produced particularly broad concern, perhaps because the police invaded a newsroom and not, as in Flint, a commercial print shop where no journalists work. "I feel I've been completely compromised," said Reporter Loy, who had talked his way into the Idaho prison as a member of a convict-approved "citizens committee." "These people asked me to go in because they knew I could be trusted." CBS News President Bill Leonard called the raid "unjustified." New York Attorney Floyd Abrams, who has argued several press freedom cases, said the Boise action was "particularly offensive" because the prosecutors did not seek a subpoena for the tapes.

Unlike a search warrant, which requires no advance notice, a subpoena can be challenged in court before it is carried out. Says Harvard Law Professor Arthur R. Miller: "The search warrant should be used only as a last resort, when every other avenue of investigation has been exhausted." This, Miller feels, would prevent prosecutors from "living off journalists in a parasitical manner" when the information sought may be available elsewhere. Says he: "The prosecution should not be allowed to go fishing."

In order to restrict those fishing trips, the House and Senate Judiciary committees have written bills that make the searches conducted under the Supreme Court's Stanford Daily decision illegal. The bills would make it necessary for police to subpoena material they think they need from reporters. "You know who's going to pass it for us?" asks Jack Landau, director of the Reporters Committee for Freedom of the Press. "The cops in Flint and Boise. It ought to be called the Police Department Memorial Bill."

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