> The search warrant, signed by Marion County District Court Magistrate Judge Laura Viar, appears to violate federal law* that provides protections against searching and seizing materials from journalists. The law requires law enforcement to subpoena materials instead. Viar didn’t respond to a request to comment for this story or explain why she would authorize a potentially illegal raid.
In practice, no.
Just look at marijuana and abortion laws for two different prime examples of how supposed federal law superseding "lower" law can play out in ways that circumvent the nature of that power structure.
The reality is law is reactionary. Just because a law exists doesn't mean there is actually anything tangible preventing you from performing an action, and if the courts are acting in ways counter to federal law AND/OR federal law isn't asserting/executing authority that it has to supercede local law, then it's implicitly allowing it to continue and perhaps even setting precedent or groundwork to dismantle that particular paradigm.
Remember, this is America. States Rights advocates aren't just numerous, but hold significant power in state and federal legislature and courts. While the Federal law should reign supreme, the reality on the ground is that even when it does, it's often playing catch up, so there's still a gulf between how things work in theory, and in reality, if for nothing else just due to the slow operation of federal government and law.
Neither of these are good examples.
Marijuana is because the Feds choose not to act; the DEA could raid every dispensary tomorrow if they wanted.
Abortion never got meaningfully protected at the Federal level. The Dems had sort of a chance at it, but chose the ACA to spend that political capital on instead.
> (a) Right of action
> A person aggrieved by a search for or seizure of materials in violation of this chapter shall have a civil cause of action for damages for such search or seizure—
> (1) against the United States, against a State which has waived its sovereign immunity under the Constitution to a claim for damages resulting from a violation of this chapter, or against any other governmental unit, all of which shall be liable for violations of this chapter by their officers or employees while acting within the scope or under color of their office or employment; and [...]
And https://www.law.cornell.edu/uscode/text/42/2000aa-7
> (c) “Any other governmental unit”, as used in this chapter, includes the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, and any local government, unit of local government, or any unit of State government.
This is an incomplete summary of the laws
It can appear as a can of tomatoes being consumed by Andy Warhol himself. It doesn't change the fact there are no shield laws in Kansas or the US for journalists.
>...it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication
... followed by a bunch of caveats about cases in which it is acceptable to seize documents. I'm not a lawyer, but that sounds to me like a federal law protecting journalists. Whether or not it was violated in this case remains to be seen.
>this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if— (1)there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate
This is obviously relevant as the police allege the journalist committed a crime, specifically identify theft.
Or it could be a trumped up accusation and an unconstitutional warrant.
We simply don't have the information. An honest an intelligent article would have articulated this question as the Crux of the matter, opposed to obfuscating it and claiming the warrant was unconstitutional.
I'm personally very opposed to a police corruption and overreach, but also hate skewed articles that mislead. Real reform needs to come from a place of accuracy opposed to hype and misinformation.
This makes it hard for me to see this as anything other than a retaliatory overreach, especially given the context of the paper's track record of critical reporting on local government and law enforcement.
It's also worth noting that the article mentions a lawful source for the information in question (a tip from Newell's husband).