Editor’s Note: While what is happening in Marion is disturbing to us at the Free Press, we decided it best to allow an unbiased news source to deliver the information about the police raid on the Marion County Record. Historically, there has been an obvious tension between our two news organizations, and to insert that into what is happening feels inappropriate.
by Sherman Smith and Tim Carpenter
The Kansas Reflector
MARION—Marion police on Saturday defended their unprecedented raid on a newspaper office and the publisher’s home by pointing to a loophole in federal law that protects journalists from searches and seizures.
Law enforcement raided the Marion County Record on Friday, seizing computers and reporters’ personal cellphones as part of an investigation into alleged identity theft of a restaurant operator who feuded with the newspaper. Officers also raided the home of publisher Eric Meyer, who lived with his 98-year-old mother, Joan.
The newspaper reported Saturday that Joan Meyer, “stressed beyond her limits and overwhelmed by hours of shock and grief,” had collapsed and died.
The newspaper said it was planning to file a federal lawsuit. Free press attorneys and advocacy groups rejected the police explanation for the raid.
“It appears like the police department is trying to criminalize protected speech in an attempt to sidestep federal law,” said Jared McClain, an attorney for the Institute for Justice, a libertarian law firm.
“The First Amendment ensures that publications like the Marion County Record can investigate public officials without fear of reprisal,” McClain said. “It chills the important function of journalism when police raid a newsroom, storm the homes of reporters, seize their property and gain access to their confidential sources. That’s precisely why we must hold accountable officers who retaliate against people who exercise their First Amendment rights.”
The Marion Police Department, in a statement posted Saturday on the department’s Facebook page, acknowledged that the federal Privacy Protection Act protects journalists from searches. However, the department argued, the law doesn’t apply when journalists are suspected of criminal activity.
“The victim asks that we do all the law allows to ensure justice is served,” the statement said.
The alleged victim is Kari Newell, who owns a restaurant in Marion and was trying to obtain a liquor license.
Newell declined to answer questions for this story but pointed to a statement she issued Saturday on her personal Facebook page. She said someone had used a piece of mail addressed to her from the Kansas Department of Revenue to obtain her driver’s license number and date of birth. That information was then used to find her driver’s license history through KDOR’s website.
Eric Meyer, the newspaper publisher, said a confidential source had provided documentation that Newell had been convicted of drunken driving in 2008 and had driven without a license. A reporter used the KDOR website to verify that the information was accurate, but the newspaper decided not to publish a story about the information.
Instead, Eric Meyer said, he notified local police of the situation. Marion police, in coordination with state authorities, launched an investigation and alerted Newell. They obtained a search warrant, signed by Magistrate Judge Laura Viar, for evidence of identity theft and criminal use of a computer.
“Basically,” Eric Meyer said, “all the law enforcement officers on duty in Marion County, Kansas, descended on our offices today and seized our server and computers and personal cellphones of staff members all because of a story we didn’t publish.”
Newell, in her Facebook statement, said the newspaper has a “reputation of contortion,” and that “media is not exempt from the laws they blast others for not following.”
“The victim shaming culture is sad and an injustice,” Newell wrote. “I have received false reviews, nasty hateful messages and comments and borderline threats. The sheer amount of defamation and slander is overwhelming.”
News of Friday’s raid attracted national attention and elicited condemnation from free speech organizations.
Shannon Jankowski, PEN America’s journalism and disinformation program director, said law enforcement should be held accountable for violations of the newspaper’s legal rights.
“Journalists rely on confidential sources to report on matters of vital public concern,” Jankowski said. “Law enforcement’s sweeping raid on the Marion County Record and confiscation of its equipment almost certainly violates federal law and puts the paper’s very ability to publish the news in jeopardy. Such egregious attempts to interfere with news reporting cannot go unchecked in a democracy.”
Max Kautsch, president of the Kansas Coalition for Open Government, said if there were evidence to justify an exemption to federal law protecting journalists from searches, it would be identified in the affidavit that supports the search warrant.
Kansas Reflector on Friday petitioned Marion County District Court for a copy of the affidavit. The court has 10 days to provide the document or deny the request.
“There is no reason for that information to be withheld,” Kautsch said. “Once the public has an opportunity to look at the search warrant application, it can decide for itself whether the search was justified, rather than take the word of the agency that executed the search.”
National Press Club president Eileen O’Reilly and Gil Klein, president of the organization’s Journalism Institute, said in a joint statement they were “shocked and outraged by this brazen violation of press freedom.”
“A law enforcement raid of a newspaper office is deeply upsetting anywhere in the world,” they said. “It is especially concerning in the United States, where we have strong and well-established legal protections guaranteeing the freedom of the press.”
The Marion County Record on Saturday said Joan Meyer, the publisher’s mother and co-owner of the paper, had not been able to eat or sleep after officers arrived at her house.
“She tearfully watched during the raid as police not only carted away her computer and a router used by an Alexa smart speaker but also dug through her son Eric’s personal bank and investments statements to photograph them,” the newspaper reported.
Before the raid, the report said, Joan Meyer had been “in good health for her age.”
Marion newspaper’s lawyer chastises police for treating newspaper as ‘drug cartel,’ ‘street gang’
An attorney representing the Marion County Record in wake of a raid of the newspaper’s office urged Marion law enforcement officials to stop short of examining computers and other seized property pending a court hearing on whether the search violated legal standards.
Bernie Rhodes, a lawyer from Kansas City, Missouri, said in a three-page letter to Marion Police Chief Gideon Cody that treatment of the newspaper and its employees as if they were participants in a violent criminal enterprise ran afoul of mandates in the U.S. Constitution designed to protect freedom of the press.
He advised the police chief, who has defended the decision Friday to raid the Marion County Record, the home of the publisher and a member of the Marion City Council, to take advantage of a window of opportunity to mitigate legal damage.
“Your personal decision to treat the local newspaper as a drug cartel or a street gang offends the constitutional protections the founding fathers gave the free press,” Rhodes said in the document. “I can assure you that the Record will take every step to obtain relief for the damages your heavy-handed actions have already caused my client.”
Rhodes said publisher Eric Meyer’s 98-year-old mother, Joan Meyer, compared actions of Marion law enforcement officers to “Hitler tactics” less than 24 hours before she died Saturday. Eric Meyer, who has indicated the newspaper could file a federal lawsuit, said trauma of the police search of her home may have contributed to her death.
In the letter to the police chief, Rhodes said the journalist shield law in Kansas provided for a court hearing before law enforcement could review seized information. He said federal law enabled access to an individual’s driving license status for unpublished research purposes. In this instance, information about a local business owner was examined by newspaper staff on a website maintained by the Kansas Department of Revenue. The Marion County Record didn’t publish information gleaned from the site.
In an interview Monday, Gov. Laura Kelly said she was eager to learn more details of the raid and assess whether rights were infringed.
“I think there is a lot more to know,” she told State Affairs Kansas. “I’m very anxious because I’m a strong advocate for freedom of press, freedom of speech. We will continue to support the questions that are being asked all over.”
Unlocking web of intrigue
The decision of local law enforcement to execute search warrants on the Marion County Record’s office, the publisher’s home and the residence of Marion City Council member Ruth Herbel exposed a web of intrigue tied to a local restaurant owner’s 2008 drunken driving conviction and her pending application for a liquor license.
Restaurateur Kari Newell had previously alleged during a Marion City Council meeting that Herbel “negligently and maliciously” engaged in theft of information about Newell’s driving record. Newell also accused the Marion County Record of violating her privacy by examining government records revealing her driving record.
The Marion Police Department said in a statement Saturday the agency was justified in investigating suspected criminal activity and was responding to the restaurant owner’s demand that “justice is served.”
The Kansas Bureau of Investigation, which is under authority of Attorney General Kris Kobach, assigned an agent to the case prior to the raid at the request of Marion police. KBI Director Tony Mattivi said he supported press freedom but defended use of search warrants to examine allegations of wrongdoing. Mattivi said “no one is above the law,” including representatives of the media.
There are pending requests from news organizations for release by Marion County District Court of the probable cause affidavit relied upon by Magistrate Judge Laura Viar to grant the search warrant.
Max Kautsch, a Lawrence attorney with the Kansas Coalition for Open Government, said the organization condemned the searches and seizure of property from offices of the Marion County Record and the home of its publisher. He said law enforcement authorities trampled First Amendment rights while carrying out their assignments. The local police department apparently didn’t first seek a subpoena for the newspaper’s materials, which would have given both sides the opportunity to argue legal propriety of the request.
Kautsch said the affidavit should be promptly released so the public could better evaluate whether actions of authorities were justified.
“Law enforcement has refused to explain the facts that led to the issuance of the warrant,” Kautsch said. “Given the publicity surrounding this matter, and that details of the incident have been heavily publicized as a result of the reporting by the Record and others, there is no longer any reason to withhold the affidavit supporting the request to issue the search warrant.”
