When a Journalist Isn’t a Criminal, But Still Gets Treated As One

​In any democracy, the justice system and the Fourth Estate are bound to clash. When they do, the clash often reveals much more about the status of constitutional freedoms than the details of a given case. Case in point, a headline from July 22 on Bloomberg Law: “Journalist’s Wiretap Prosecution Exposes First Amendment Risks.”

Here's the backstory behind a case fraught with First Amendment implications, one Protect The 1st has followed since 2022.

• Journalist Tim Burke obtained deleted clips from Tucker Carlson’s controversial interview with Kanye West when Carlson was still with Fox News. Burke then shared those with Vice and Media Matters for America, which published them. This was embarrassing to Carlson, who framed the interview as showing Kanye West – now Ye – to be an iconoclast worth listening to. The deleted portions were, to put it in strictly scientific terms, absolutely bonkers.

 

• Fox apparently invited this embarrassment by uploading the outtakes to a public online site and neither securing nor encrypting them. But that didn’t stop the Justice Department from raiding Burke’s Tampa home and seizing his electronic devices.

 

• Now the case against Burke is proceeding in a federal court in Florida. It represents, warns Bloomberg’s Holly Barker, an invitation for prosecutorial abuse, potentially turning what doesn’t even seem to rise to the level of misdemeanor molehills into felony mountains. The prosecutors’ “felonizer” here is an expansive over-interpretation of the Wiretap Act, which DOJ appears to be using to turn possible Computer Fraud and Abuse Act infractions into far more serious violations – 14 of them, to be exact.

At the heart of the case is the relevance of the First Amendment in the digital age – and, to a lesser extent, what constitutes a journalist in the modern sense and perhaps even the meaning of what is “public.” For the moment at least, the court is taking the case and these constitutional questions seriously, seeing it as the high-level referendum on freedom that it is.
Judge Kathryn Kimball Mizelle acknowledged: “Burke’s arguments raise novel questions with potential wide-reaching impact.”

An ACLU-led coalition, the Reporters Committee for Freedom of the Press, and the Electronic Privacy Information Center have all filed amicus briefs outlining what’s at stake in this case.
​
Protect The 1st believes that making use of materials left in open view – whether posted online or put out on a public sidewalk – is in no sense a wiretap. Worse, the FBI raid on Burke’s home was overkill that deserves to be slapped down. We hope Judge Mizelle will stand for a free press and rule against this attempt by prosecutors to narrow the First Amendment.

DONATE & HELP US PROTECT YOUR FIRST AMENDMENT RIGHTS