Zurcher v. Stanford Daily, 436 U.S. 547, 1978
The “Third Party” Search Newspaper Case
Facts : The Stanford Daily published a special edition with articles and images on a violent clash between police and protestors at the university hospital. Several police officers were hurt during the altercation. The police got a warrant to examine the Daily newsroom for negatives and images that would show the identify of the protestors engaged in the attack. The Daily and its personnel were not involved in the illegal conduct. They filed a civil lawsuit under the federal civil rights legislation against the district attorney and the police officers who performed the search, alleging infringement of their constitutional rights under the First, Fourth, and Fourteenth Amendments. The defendants appealed to the United States Supreme Court after the Daily and its employees won in district court and the Ninth Circuit Court of Appeals.
ISSUES : May police obtain a warrant to search the premises of a newspaper for evidence where neither the newspaper nor its staff is implicated in the crime in question?
ARGUMENTS : Due to First Amendment concerns, The Daily claimed that when the innocent third party being searched is a newspaper, a warrant should be obtained only in exceptional circumstances. It said that “searches of newspaper offices seeking evidence of crime… will significantly jeopardise the press’s capacity to acquire, evaluate, and distribute news.”
This would be accomplished through a chilling impact on the editing process, publishing interruptions, and a reduction in access to sensitive sources of information.
According to the police, the only constitutional condition for obtaining a warrant, even from an innocent third party, was that they have reasonable cause to think that the things to be taken would be located on the premises or person being searched. They claimed that the mechanism for obtaining the warrant appropriately safeguarded the press’s First Amendment rights.
DECISION : Justice White, writing for five of the justices, concluded that the processes for obtaining search warrants provided adequate safeguards to make third-party searches of newspaper offices permissible. The innocence of the individual whose property is being searched, according to Justice White, is not the most important element in the issue of a warrant. Rather, the focus is on whether the police had a reasonable expectation that fruits, instruments, or evidence of a crime would be discovered on the person or property in issue. The battle between the government and the press, according to Justice White, has played a crucial part in the history of the Fourth Amendment.
He observed that the government could use search warrants to stifle free expression, but argued that this concern could be addressed by requiring magistrates to apply warrant preconditions such as probable cause, reasonableness, and the requirement that items to be searched for be listed specifically, with “particular exactitude,” when there were potential threats to First Amendment interests. Concerning the potential reduction in the availability of confidential sources, Justice White noted that any such effect “does not make a constitutional difference.”
In a concurring decision, Justice Powell stated that the press was not entitled to an unique procedure when government authorities sought evidence in its hands. He interpreted the Court’s decision as requiring a magistrate to “take cognizance of the independent values protected by the First Amendment” while deciding whether to issue a warrant for a press search.
In a dissent supported by Justice Marshall, Justice Stewart contended that in third-party searches involving the press, the search should be constitutionally acceptable only if (1) essential materials would be destroyed and (2) a restraining order would be pointless. Otherwise, the police should serve the newspaper with a subpoena requiring it to handover any identified items to the police without conducting a search of the premises. On the implications of police searches on press access to confidential sources, Justice Stewart disagreed with the majority. He stated that since those
searches “prevent a newsman from being able to promise confidentiality to his potential sources, it seems obvious to me that a journalist’s access to
information, and thus the public’s, will thereby be impaired.”
In a solitary dissent, Justice Stevens dodged the First Amendment issue by contending that the search warrant in this case was illegal under the Fourth Amendment. The search, according to Justice Stevens, was illegal since the Daily was not engaged in the crime and there was no risk of evidence being lost due to the use of a subpoena; the fact that the press was involved was irrelevant to his judgement.
Significance: 1. After the news media criticized the ruling, Congress responded with the Privacy Protection Act of 1980. This statute made government searches of the press illegal unless there is probable cause to suspect that the person or office being searched is engaged in the crime being investigated or there is reason to believe that giving notice by subpoena would result in the loss of evidence.
2.The Zurcher case was one of the most significant in a long series of Burger Court rulings addressing the media’s First Amendment rights. These precedents imply that any rights established by the First Amendment apply equally to the press and private persons; consequently, the constitutional standard for free speech in press matters is what any member of the public can say in a particular scenario.