Cuccinelli supports seizure of Breeze photographs

Alex Sirney -- April 21st, 2010

The state attorney general told the Harrisonburg-Rockingham Chamber of Commerce that he didn’t believe the seizure of more than 900 photographs from the campus newspaper was a first amendment issue, the Daily News-Record reports.

Ken Cuccinelli’s statements on Thursday followed a meeting with Commonwealth Attorney Marsha Garst.

The seizure of 926 photographs taken by The Breeze, JMU’s student newspaper during the civil disturbance on Village Lane has attracted national attention, appearing in the Washington Post and the Huffington Post. The Breeze is currently represented by the Student Press Law Center, and the Society of Professional Journalists has condemned Garst’s actions.

The Breeze reported that Garst, accompanied by several police officers, went to The Breeze‘s offices Friday morning with a search warrant, after Editor-in-Chief Katie Thisdell told the Commonwealth Attorney’s office Thursday that The Breeze policy was to only release published photos. Thisdell initially refused to turn over the photos again on Friday until Garst threatened to confiscate The Breeze‘s computers.

Thisdell then allowed the photos to be copied and contacted the SPLC, which has said the raid may have violated the Federal Privacy Protection Act and has succeeded in having the photos sealed by the Commonwealth Attorney.

“It’s not the responsibility for us as journalists to be the police,” Thisdell said Wednesday. “If we did give up evidence, sources may not trust us.”

“Even though we’re not trying to protect anyone, it could have later implications.”

Attorneys from both sides are in discussion, though Thisdell declined to comment on the details of that discussion.

No similar warrant or request has been made of WHSV as of noon Wednesday, nor is any similar request known to have been made of The Daily News-Record.

[EDIT: Updated with Cucinelli’s statements and more general information.]

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46 Responses to “Cuccinelli supports seizure of Breeze photographs”

  1. Holly says:

    I could not be more dismayed by the prosecuting attorney’s actions. This is a clear violation of freedom of the press.

  2. Unfortunately, Holly, there’s not enough of the electorate educated enough to know that…and the electorate here won’t care when her next election comes up.

    Our community appears to enjoy being kingmakers…they elect their friends to four, or eight year terms…and unless they write themselves interest-free payday loans (or other equivalent conduct), they ignore mediocre or average performance instead of possibly putting someone better, and more qualified.

    I’m not implying this is anyone in office, but just a general observation that the electorate is largely uneducated on issues relating to specific candidates, and ignore average performance once their king is in a job.

    Wilt’s a perfect example…I’ve not seem one policy statement except the usual canned Republican doublespeak…but today, Carol Fenn said that budgets voted on by Matt Lohr never provided full state funding to our local schools…but Wilt wants to maintain the level of representation Lohr gave us?

  3. Thanks, BTW, to whomever decided to take me out of moderation…I promise to play nice in your sandbox.

  4. I would have to say, that I don’t buy the editor’s explanation over her concern of “giving up evidence” in this situation as detrimental to guarding the confidentiality of their sources…this was a public riot, not akin to say, something like a rape committed in a frat house party.

  5. We hope this incident wakes up some of the townies who have been suckered by pro-police propaganda into condemning the students and party-goers who fought back against police aggression…the police are still the largest gang around!

  6. Oh, please…take the anarchist garbage back to your blog.

  7. JGFitzgerald says:

    RR, the sixties wannabe cliches are kind of cute, in a nostalgic sort of way, but if the police had been aggressive, they would have used guns and nightsticks, not tear gas. Also they wouldn’t have waited a few hours to get organized for the restrained response they exhibited. There are real issues of prosecutorial necessity and First Amendment protections in play in the Breeze case, but the only pro-police propaganda most grown-ups needed were the youtube videos of drunken, rock-wielding teens. And, by the way, we’re not townies — we’re Harrisonburg residents.

  8. Emmy says:

    I have very mixed feelings about this situation. My desire to protect freedom of the press is very very strong, but at the same time I have a nagging in my head that says this was a public event, and the school agreed to cooperate in every way with the police. I guess I just need more information about the laws here and the precedent.

    • Alex Sirney says:

      Just for reference, The Breeze functions as an independent part of the University. I’m not sure about the legalese of this, but the University has traditionally kept its hands away from the paper, which is almost completely student-run, and I doubt they intended to include it in their cooperation statement.

      • Emmy says:

        Thanks Alex, I didn’t realize that.

      • JGFitzgerald says:

        Also, the CA’s office didn’t approach the University’s attorney. They approached a 20-year-old editor. It ain’t black and white.

        • Alex Sirney says:

          They did initially approach the paper’s faculty advisor, who referred them to the editor.

          • JGFitzgerald says:

            Another reason it’s not black and white: Assuming there may be an argument at some point that the paper is state-owned, did the CA’s office grant legitimacy to the Breeze as an independent org by not starting higher, that is, with a pure agency of the state? (Or did they start higher, and get referred to the advisor, but nobody’s thought to ask that of JMU, and Marsha’s not talking?)

            Not arguing, mind you, just mulling. It’s an interesting case.

          • JMU Alum 1982 says:

            The faculty advisor is just that an advisor. The editor-in-chief is really in charge of the newspaper.

  9. Lowell Fulk says:

    I found this:

    …in Zurcher v Stanford Daily, the Court upheld the government’s right to search a newsroom for evidence of the identities of persons engaged in criminal conduct. The case involved an effort by local police to find photographs that might reveal the identities of persons engaged in a violent demonstration that left nine police officers injured. The Court rejected the paper’s argument that the First Amendment required authorities to seek to obtain information by a subpoena rather than a search with a warrant. The Court cautioned, however, Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with “scrupulous exactitude.”

    • Grant Penrod says:

      The Zurcher decision was in 1978. In 1980 the federal Privacy Protection Act was enacted, at least partly in response to Zurcher.

      So in addition to any limitations on newsroom searches created by the First Amendment as interpreted in Zurcher, there are also statutory protections under the Privacy Protection Act that must be considered.

  10. Lowell Fulk says:

    Do links automatically go into moderation?

    • Lowell Fulk says:

      Evidently links get caught and then also pasting the actual url. How can I avoid triggering the auto response?

      Oh of moderation purgatory… :o/

  11. Deb SF says:

    The seizure rated a major editorial in the Washington post this morning. The whole thing is worth a read.

  12. Holly says:

    Send in the clowns!

    A quick Wiki read of Cucinelli reveals…

    “Cuccinelli at first publicly stated that it was possible that President Barack Obama was born in Kenya, and that the validity of any law that he signed could be challenged to raise the question of Obama’s citizenship. In response to the controversy surrounding his statements, Cuccinelli on March 15, 2010, issued a statement clarifying that he believes that Obama was born in the United States.”

    Hehe. He’s certainly been wrong before…

    • JMU Alum 1982 says:

      I saw yesterday that people were planning on demonstrating Cuccinelli’s visit to H’burg. I would have a hard time deciding on what issue to demonstrate. I mean, there are so many issues with him and you can only put one on your sign…

      • Lindsay says:

        Cuccinelli’s tweet about the demonstration yesterday http://bit.ly/dmy5PE

        “About 15 protesters in Harrisonburg, oldest average age I’ve ever seen for protesters (by about a decade). Talked about epa + HC w/chamber”

  13. Thanks, Alex, for having removed the comments…you can delete mine, since the only purpose was to point out what the previous comment had written.

    You may also wish to correct your second paragraph where you referred to the District Attorney.

  14. Alex Sirney says:

    I’ve removed four comments because of their use of strong language and personal attacks. I’d ask that all users stick to discussing the issues with reasonable language and mutual respect.

    Deliberate misspellings of Ken Cuccinelli’s last name, especially pseudo-phonetic spellings of the first syllable, will be removed. I know it’s his nickname, but let’s be formal here.

  15. My question is: Did we elect Cuccinelli to spend most of his waking hours going around Virginia to make speeches, or what? He seems to spend A LOT of time, our time, doing that.

  16. David Miller says:

    I wonder where the Chamber stands on the constitutionality of the Health Care Reform bill? Cuccinelli’s sure is visiting every Chamber he can, from the looks of his tweets.

  17. This article details a similar case whereby a California Judge issued a search warrant to search the home of a Gizmodo blog editor…

    It mentions the law the Breeze relies upon to demonstrate that Marsha’s judge-signed search warrant was in violation of federal law.

    http://news.cnet.com/8301-13579_3-20003446-37.html

  18. BANDIT says:

    Dave, Any updates on the Curt’s Court case(s)?…I know, it’s off topic. Well, OK, what do you think is going to happen to Marsha Garst?, or what can happen to her?

  19. Nothing’s going to happen to Marsha because she broke no criminal law…but, tell you what, Benny. If you’re so concerned and want to write a petition, there’s a valid template you can use sitting in the Clerk’s Office of the Circuit Court.

  20. And even if Marsha had overstepped a Virginia criminal statute, you’re not going to get 10% of the local electorate to sign a petition to remove her….and even if you got 10%, you’re not going to find a judge to remove her when a fellow judge signed the search warrant.

  21. Here’s the latest on the Curt trial from the Franklin News-Post, which is ongoing in Franklin County Circuit Court:

    http://www.thefranklinnewspost.com/article.cfm?ID=16131

    I’ve served Curt and his companies, a number of subpoenae over the last few weeks…and Walter Curt had me served with a no trespassing notice for doing my job…his attorney, Clint Sellers, has agreed to take further subpoenae on his behalf.

    Curt tried to refuse the subpoena requiring his personal appearance saying “I don’t take those, my lawyer does”…just before I handed it to him.

  22. Parent says:

    If there was ever a shred of thoughtful, intelligent, rational discourse that ever came out of Cuccinelli I’d probably keel over. The knee jerk blather is embarrassing, and at worst, the words of someone who acts without thoughtful intent for his constituents (Which is all of us in VA). What do we have to do to get public officials who can think for themselves, delegate well, and have minds that are capable of complex thought?

  23. Hey, the Libertarian Party of Virginia has issued a statement calling for Marsha to be removed and prosecuted…showing that even the Libertarian Party is ready, willing, and able to brand someone who MAY have committed a civil violation of a statute within the United States Code to someone who violated the Bill of Rights and needs to be removed and prosecuted.

    Idiots…it’s in the Hook:

    http://www.readthehook.com/blog/index.php/2010/04/28/libertarians-call-for-prosecutors-ouster/

  24. Uh-oh, my link must have thrown me back into moderation. Or that I called the LPVA “idiots” for the statement they issued.

  25. Dave Briggman says:

    Here’s another story referencing the current suit…it appears Curt has been dismissed from this suit, which explains why several codefendants were serving subpoenae on Curt and his companies within the past couple of weeks.

    http://www.roanoke.com/news/roanoke/wb/244882

  26. BANDIT says:

    Dave, Good job!….Thank You!

  27. From today’s Roanoke Times…the marina found NOT liable…expert’s testimony contradicts Curt…occupants of the boat tossed from 50-100 feet from the boat…

    http://www.roanoke.com/news/roanoke/wb/245313

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