Instead of choosing that option, prosecutors took a more aggressive, and outrageous, tack. They obtained a search warrant for Ms. Natanson’s home and seized her phone and other devices, an extremely rare move for the Justice Department in its dealings with journalists. In seeking the warrant, prosecutors did not inform the judge of the existence of the Privacy Protection Act, a 1980 law which banned searches of journalists unless they were considered a suspect in a crime or if the material sought was suspected to involve certain kinds of national security material. The Privacy Protection Act was not meant to prohibit the Justice Department from obtaining any information from journalists, but it was intended to eliminate exactly this kind of harassment of reporters like Ms. Natanson.
The Post has challenged the legality of the Natanson search, and a pair of federal judges in Virginia have ruled that the court will review the seized materials before allowing the F.B.I. to examine them. The Justice Department had appealed the first decision, arguing that the search warrant was valid and that the F.B.I. should be able to immediately examine the contents of Ms. Natanson’s devices. (The Post just reported that the Justice Department has withdrawn demands that one of its reporters, as well as three reporters for The Wall Street Journal, testify before a grand jury, but the government is standing behind its seizure of Ms. Natanson’s devices.) “As a reporter, Ms. Natanson is subject like any other citizen to a legitimate use of criminal legal process in a criminal investigation, such as this search warrant,” the government argued.
That’s also the theme of the Justice Department’s contentions in the Lemon case in Minnesota. In both cases, the Justice Department does not acknowledge that the First Amendment — which specifically protects the freedom of “the press” — offers any relevant protections. As the government put it in a pretrial brief in the Lemon case, “Journalists are not above the law.” By invoking a kind of faux populism, the Justice Department is acting as if journalists were seeking special privileges rather than playing the role the Constitution assigns to them.
Elaborating on this point, Harmeet Dhillon, the assistant attorney general in charge of the department’s civil rights division, said on social media of the Lemon case, “Claiming ‘I’m a journalist’ doesn’t give you a pass to break the law.” Because the case involves what the government describes as the protection of religious freedom, Ms. Dhillon’s office is supervising the prosecution.
Ms. Dhillon has a point, at least under current law. Some lower courts have put a pro-journalist gloss on the Branzburg decision and found a limited, or qualified, privilege for reporters to challenge certain subpoenas from prosecutors. But the Supreme Court has been moving away from protecting the rights of journalists, with Justices Clarence Thomas and Neil Gorsuch having called for the Sullivan precedent to be revisited. And the general rule set down by the justices in 1972 holds: The First Amendment does not give journalists, even those operating in good faith, the right to violate laws that govern the conduct of all other citizens.
