Enhanced Protection of the Press in Search and Seizure
Yuh-kyoung (Kate) Rhie
Motive
Freedom of speech can be viewed from both individual and public perspectives. On the one hand, individuals are entitled to freedom of speech without any interference by the government or other individuals. Even if what they say reflects negatively on the government or the reputation of others, the First Amendment guarantees the individual’s right to speak his/her opinion provided their statements are truthful and thereby unrestricted by tortious rules. From the public perspective, on the other hand, organizations designed to preserve free speech like the press and political parties also enjoy First Amendment protections. When such entities are involved in or suspected of criminal activity, they may be investigated and prosecuted as individuals would be. In such cases, important or confidential information that should be protected may be collected by the government during search and seizure. A fear of search and seizure may encourage self-censorship by the press making their First Amendment protections little more than nominal. Thus, we must consider whether search and seizure should be restricted for the press and political parties in their function as guardians of free speech.
When we assume that the freedom of speech of the press and political parties functions as an individual right, these enhanced protections are not justified. That is, no legal grounds exist for giving such privilege to the press or a political party. However, these institutions provide individuals with information they would have difficulty obtaining on their own. For example, the average citizen is unlikely to inform himself about the prison system by interviewing an inmate with whom he has no prior relationship” . These institutions also provide factual and logical grounds for certain issues on the basis of which individuals form their own opinions. Furthermore, as most individuals lack the social, financial, and political resources to resist unconstitutional pressure by the government, the press and political parties serve as a barricade protecting individual freedom of speech from the government or other powers. Under the First Amendment, they act as the collective agencies of freedom of speech.
This paper explores several cases and statutes concerning the freedom of speech held by the press in cases of search and seizure. It deals with some cases about the press privilege emanating from the First Amendment. This paper also explicates how the collective characteristics of the First Amendment can offer strong protection for political parties. The latter assumption essentially involves the extension of the First Amendment’s collective protections to the Fourth Amendment. Specifically, as 1) the press is strongly protected by the First Amendment owing to its collective characteristics, and 2) political parties and the press both serve to protect freedom of speech, we can infer the necessity of enhanced constitutional protections for political parties. Finally, this paper concludes that enhanced protection of the press and political parties is required to accomplish the fundamental aim of the First Amendment. I will use both Korean and U.S. cases as examples.
Conflicts in South Korea
In South Korea, there have been several notable cases illustrating the tension between enforcement of criminal law and freedom of speech in the press. In 2008, MBC, Korea’s public service broadcaster, televised a current affairs program titled as “Is American beef is safe from mad cow disease?” The Minister for Food, Agriculture, Forestry and Fisheries accused the program’s production staff of defamation. This resulted in a compulsory search of the e-mails, cell phone records, and homes of all staff members. The prosecution arrested two producers without warrant. They tried to search the MBC office, but their efforts were frustrated by the union members of MBC.
A second case occurred amid Korea’s dissolution of anti-constitutional political parties. The Unified Progressive Party (UPP), Korea’s third largest political party, pursued European social democracy and was bitter about U.S. military policies on the Korean Peninsula. An informant of the National Intelligence Service (NIS) infiltrated UPP and succeeded in recording a UPP congressman stating that if there were a war between North Korea and the U.S., they should destroy facilities like telecommunications infrastructure and oil storage that could help the U.S. troops. Based on evidence in the tape, the prosecution accused the UPP congressman of insurrection. The Korean government also filed a claim for the dissolution of UPP. While investigating UPP, the prosecution combed their offices and congressman’s house under a search and seizure warrant. Some criticized this search and seizure since under Korean criminal law, insurrection requires causing violence actus reus. The intent to create violence is not enough to warrant the charge of insurrection. In this case, merely speaking about a possible unconstitutional action without causing any tangible danger did not justify a full-scale search and seizure of the offices and electronic database of a political party.
The U.S. Cases and Statutes
In South Korea, the fact that the press and political parties violate laws clouds constitutional issues, especially where it concerns Korean society’s taboos (e.g., North Korea). It is not surprising, then, that few Korean cases focus on the relation between the freedom of speech and criminal procedure. Zurcher is a U.S, case that deals with this relation head-on and offers insight into the Korean situation.
In Zurcher, a student newspaper issued articles and photographs about a conflict on campus between protesters and police. To identify the protesters involved in the violent conflict, police conducted a search of the newspaper office with a warrant, but without advance warning. Many documents and photos unrelated to the protest were found when police searched the paper’s editorial offices. The Supreme Court held that the search of the newsroom satisfied the Fourth Amendment and was constitutional. No stronger protection for the press from search and seizure is secured under the First Amendment. The majority of the Supreme Court held that the First Amendment rights of both the individual and the newsroom would make no difference if the search were legitimate under the Fourth Amendment. They thus rejected the district court’s suggestion that, to further privacy, using a subpoena duces tecum would be more appropriate than a search warrant.
The dissenting opinion in Zurcher stated that a subpoena should override a search warrant in searching a newsroom. A subpoena would allow the editorial staff itself to check its documents and submit the relevant ones, whereas a search warrant would enable police to access all files and photos regardless of relevance. If police officers get unrelated documents in the course of an unannounced search, the newsroom’s ability to get and protect confidential news sources could be compromised.
Though the Supreme Court has supported few special protections for the press and denied them any constitutional safeguard from search and seizure, federal statues contain more specific requirements for search and seizure for the press. 42 U.S.C.A. § 2000aa prohibits search and seizure of work product materials possessed with the purpose of disseminating a newspaper, broadcast, or similar public communication without “probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” The problem here is how to define “work product”. Courts typically apply a strict standard for it. The videotaped abduction of a woman owned by a television broadcasting company, for example, was not considered work product since it was unintentionally taped and not produced for release to the public.
Collective meaning of the Fourth Amendment
The courts have consistently stated that Fourth Amendment rights belong to the individual and cannot be exercised by a corporate entity. They have focused on the rhetorical meaning of “the people” in the Fourth Amendment noting that, when we mean collective agency, we usually use the term “citizens.” However, to suggest that the meaning of “the people” in the Fourth Amendment is confined to individuals is a hasty conclusion. Terminologically, the phrase “the people” generally refers to a specific group or society as in Lincoln’s Gettysburg Address.
Moreover, the constitutional protection of speech guarantees the furtherance of our individual and collective searches for truth in the marketplace of ideas of which the press and political parties are prime examples. The First and Fourth Amendments do not impose obligations on individuals, but rather on the government. It is the burden of the government to prove the necessity of searches and seizures that endanger the fundamental aims of the First and the Fourth Amendments. If we accept that these constitutional rights are collective and build the foundation for individual rights, and that the press provides a safeguard for these rights, then it is a small logical step to include political parties as another such safeguard.
Conclusion
The federal statute requires probable cause for the government to conduct search and seizure; however, it does not show any preference for the use of subpoena which would allow the press to better protect its confidential sources. Unlike the majority, the dissent in Zurcher recommended using the subpoena to prevent damage to freedom of speech that can occur during search and seizure with a warrant.
Let’s go back to the Korean cases. In the MBC case, the court should have balanced the severity of the defamation with the freedom of speech. Defamation is a minor criminal offense, whereas the freedom of speech is a fundamental constitutional right. The attempt to search the MBC office, including the production staff’s homes and smart phones, seems to break this balance.
Political parties are collective agencies under the First and Fourth Amendments much like the press. It can be inferred from the federal statute that probable cause for a crime is required to conduct a search and seizure of a political party. If the evidence is not enough to indicate a crime, the government should refrain from conducting searches and seizures. In the UPP case, however absurd the congressman’s speech might have been, mere speech without any accompanying action cannot constitute insurrection. In this case, the search and seizure should have been restricted to the purpose of finding specific evidence for insurrection. Thus, the search and seizure of all computer devices, documents, and personal information of the party members was excessive. In a democratic society, government enforcement of standards on political parties should be a last resort. The press, as a safeguard of free speech, would ideally report this absurd speech allowing the people to decide whether the party would survive a vote.