The DOJ Is Making a Huge Mistake Censoring a Journalist Who Embarrassed Fox News


Photo illustration by Slate. Photos by Chip Somodevilla/Getty Images, Saul Loeb/AFP via Getty Images, and Getty Images Plus.

Court orders prohibiting journalists from publishing news are the most serious of First Amendment violations, according to the Supreme Court. The Pentagon Papers case famously held that these orders—known as prior restraints—are unconstitutional, even when the government claims national security is at stake.

But federal prosecutors in Florida have concocted a novel workaround to restrain journalists from publishing news: declaring the news itself to be criminal “contraband.” That’s the latest constitutionally dubious argument they’re making in the prosecution of Tim Burke.

Burke—known for breaking the story of a hoax involving college football star Manti Te’o—is accused of violating the Computer Fraud and Abuse Act and federal wiretapping laws by finding and disseminating, among other things, unaired outtakes from Tucker Carlson’s Fox News interview with Kanye West—the one where West went on a bizarre antisemitic rant.

The FBI raided Burke’s home newsroom and seized his files in 2023; he was indicted this February. Now, prosecutors are seeking to bar him from publishing the seized materials—which they have to give back to him in discovery so he can use them to support his defense—by claiming they are the “fruits of the alleged criminal conduct.”

The idea of treating journalists’ files as ill-gotten gains is offensive to the First Amendment. For one, Burke hasn’t been convicted of anything. The motion notes that his alleged source took a plea deal and admitted sharing login credentials he found online without “authorization.”

But, even assuming that’s illegal (the Electronic Frontier Foundation, the ACLU, and others have their doubts), journalists are entitled to receive and publish even stolen or hacked materials from sources as long as they don’t break the law themselves.

The reason the Supreme Court refused to restrain the Pentagon Papers had nothing to do with whether the New York Times and its reporters broke the law (in fact, the government tried to prosecute them, too). It had everything to do with the public’s interest in the news and the First Amendment’s abhorrence of prior restraints.

As Burke notes in his response to the motion, the materials the government seeks to restrain could be highly newsworthy—for example, outtakes from Fox’s reporting on the 2020 election, over which it’s paying almost $800 million to settle defamation claims.

Equally disturbing is the government’s ongoing failure to acknowledge that Burke is a journalist. The motion makes it sound like he was building some kind of illicit personal collection of newsworthy footage rather than informing the public of hate speech by a major celebrity.

Burke’s indictment didn’t even mention the word “journalist.” The motion only does once, in a footnote arguing journalists lose the right to publish when they break the law. But the case the government cites doesn’t say that—it only says journalists aren’t immune from prosecution.

Nobody disputes that. If Burke committed a crime for which he can be convicted without running afoul of the Constitution, then the government is entitled to prosecute him. (Whether that’s a wise exercise of prosecutorial discretion is a separate question.)

But the government should be honest about what it’s doing: charging a journalist for his newsgathering methods under notoriously overbroad computer crime laws, and seeking to take the additional, extreme step of prohibiting him from publishing news.

Instead, the motion frames the issue as noncontroversial—a grand jury found probable cause, and therefore he can be censored. What the government does not mention is that the Supreme Court has repeatedly recognized that seizures of constitutionally protected materials run “the risk of prior restraint,” regardless of “probable cause.”

One such case, Fort Wayne Books v. Indiana held that, while the government is entitled to keep copies of “expressive materials” to use as evidence, it can’t take them out of circulation entirely, especially without a determination of illegality. But that’s what’s happening here. The government’s position is that Burke can’t report news stories he was working on, based solely on a preliminary probable cause finding.

It’s true, as the government will surely argue, that there is precedent for restricting the press from publishing documents it receives through discovery in a court case. The thinking is that discovery is provided to litigants only for the limited purpose of trying their case, and no one would be willing to litigate against the press if it could publish everything it discovers.

But that only makes sense when journalists receive new information in discovery that they wouldn’t have otherwise, not when they get back their own files that shouldn’t have been seized in the first place. What if the Nixon administration had charged the Times with, say, Espionage Act violations, seized the Pentagon Papers, and then sought a prior restraint in the guise of a discovery order to prohibit the Times from publishing them?

Perhaps recognizing that their contraband theory might fail, prosecutors also include alternate arguments for censorship: that Burke’s files contain confidential and copyrighted materials belonging to Fox News and others.

If alleged national security harms don’t justify prior restraints, neither does Fox News’ privacy. The Supreme Court has protected journalists’ right to publish far more sensitive information, including names of victims of sex crimes (most journalists would never do that for ethical reasons, but it’s their constitutional right). In any event, any concerns could be dealt with narrowly on a case-by-case basis, not through wholesale censorship.

And courts have repeatedly rejected alleged copyright violations as a basis to impose prior restraints. It’s alarming that the Department of Justice would endorse a censorship tactic often employed by bad-faith copyright trolls, especially given that the government doesn’t own the copyrights.

Further, journalists are entitled to use limited portions of copyrighted works in their reporting in compliance with the “fair use” doctrine. A theory that journalists can be restrained in advance from publishing copyrighted materials at all, before anyone has any idea how they plan to use them, takes that doctrine—intended to promote free expression—out of the equation.

There’s already an alarming increase in prior restraints being issued by courts across the United States. The DOJ, in its inexplicable zeal to punish Burke for embarrassing Fox News, risks setting a precedent that will compound the problem.

Department of Justice

First Amendment

Fox News

Kanye West

Tucker Carlson

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