1,000 James Madison University Student Newspaper Photos Seized Improperly by Virginia Prosecutor

By April 20, 2010

She’s no Mike Nifong, but Rockingham County, Virginia, prosecutor Marsha Garst has something to answer for. Ten days ago, the annual Springfest party near James Madison University (JMU) drew about 8,000 people—students and non-students—and quite a bit of public disorder. There was violence. There also were dozens of arrests, such as for "failure to disperse" from an "unlawful assembly." The JMU student newspaper, The Breeze, was there as well, taking pictures. Last Friday, these pictures, along with many other unrelated ones, were seized by Garst with a large group of police officers who descended upon The Breeze with what appears to be an improper warrant.

These are not just party photos but potential evidence in criminal investigations as well as campus disciplinary charges. As The Breeze wrote on April 12:

According to [Harrisonburg Police Department Lt. Kurt] Boshart, police officers recorded the activities with video cameras. If HPD is able to identify perpetrators of illegal acts, then the police will use the footage to press further charges, Boshart said.

Judicial Affairs will also receive the arrest information for students.

Here’s what happened next, according to the Student Press Law Center (SPLC):

The Breeze‘s Editor-in-Chief Katie Thisdell said she received a call from the office of the Commonwealth’s Attorney for Rockingham County on Thursday [April 15] asking for photographs of the April 10 "Springfest" rioting. Thisdell informed them that it is the Breeze’s policy to release only photos already published on its Web site.

Friday morning, Thisdell arrived at the Breeze’s office to find Commonwealth Attorney Marsha Garst and about 10 police officers with a search warrant, threatening to take all cameras, computers and documents unless students released the photographs they sought.

"I was a little intimidated at that point and I stepped outside with our general manager and I decided that I would comply and give them the images," Thisdell said.

Thisdell then showed the Commonwealth Attorney and police officers where they could find the photographs and allowed them to burn them onto CDs.

Thisdell said she had spoken with Student Press Law Center Executive Director Frank LoMonte and tried citing the Privacy Protection Act in an attempt to avoid surrendering the photos.

The Privacy Protection Act is a "federal anti-newsroom search law," LoMonte said. Although the Act does allow lawful warrants to be executed, the media must have ample time to obtain counsel and respond to the warrant, unlike the situation with the Breeze.

The SPLC has stayed on the case like a breeze on a bug, getting the word out and finding legal counsel for the paper. The Society of Professional Journalists also came in fast and hit hard in a letter to Garst yesterday:

We are especially troubled that your actions appeared to have violated the federal Privacy Protection Act of 1980.

The office of the Commonwealth’s Attorney has trampled on the freedom of the press by trying to use this media outlet as an arm of law enforcement. In a democratic society it is vital to have an unfettered press free to exercise the First Amendment without fear of government intervention. 

We recognize the need to investigate an out-of-control public event where crimes may have been committed but there are more appropriate tools available to law enforcement than to bully the student newspaper.

We would like to point out that your own state’s constitution says that, "The freedoms of speech and of the press are among the great bulwarks of liberty and can never be restrained except by despotic governments."

And the Virginian-Pilot stated boldly today: "If there’s any justice left in Rockingham County, where Garst is the law, she will have to answer for her transgressions before a judge."

Today’s Richmond Times-Dispatch reports that Garst has returned the images–about 1,000 in all–but that they remain in limbo.:

"The understanding is that the prosecution — knowing that questions had been raised about the legality of the search — put the disc with the materials into a sealed envelope and didn’t look at it, copy it or use it for anything," [Frank D. LoMonte of the Student Press Law Center] said yesterday.

The envelope has been given to a faculty member at JMU, who will hold it until a resolution is reached between the paper’s legal counsel and Commonwealth’s Attorney Marsha L. Garst, who still is seeking use of the images for an investigation.

Fortunately, now that everyone is watching Garst’s next actions, I expect that freedom of the press is a little safer these days in Rockingham County. We’ll bring you further updates here on The Torch as events develop.

Schools: James Madison University