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By now, you’ve likely read or heard about the police raid on the Marion County Record this past Friday. It’s all over the news, here in Kansas, across the nation and even internationally.
I’ve just retired from a 50-year career in the newspaper industry, spent as a reporter, editor and publisher at five daily newspapers in Kansas, Missouri, Nebraska and South Dakota, and capped off by 14 years as executive director of the Kansas Press Association.
Nothing I’ve experienced in those five decades even closely parallels what happened last week in Marion. While the newspaper’s equipment was rightfully returned on Wednesday, I am absolutely dumbfounded by what transpired there.
We don’t live in Cuba, North Korea or Russia, but the tactics used in Marion — purportedly in an identity theft case — are evocative of how armed thugs in those countries operate when they are trying to suppress alternative voices to the government.
We still don’t know all the facts in this case here in Kansas, but I can tell you this: a Kansas law passed in 2010 was specifically designed to protect journalists — and therefore the people’s right to know — from such intrusions.
The Kansas Press Association and the Kansas Association of Broadcasters worked closely with then-Senate Majority Leader Derek Schmidt, then-Hutchinson area Sen. and former assistant Reno County attorney Terry Bruce, University of Kansas law professor Mike Kautsch and a host of other supporters to write, propose and pass a new law to protect the state’s journalists from such ham-handed intrusion into their First Amendment-protected news operations.
The law, which we in the industry refer to as the Kansas Reporters’ Shield Law, was designed to place appropriate legal obstacles to such encroachments between practicing journalists and law enforcement and the courts. It passed almost unanimously in both the Kansas Senate (39-1) and House (116-3).
Why this is important right now is the safeguards provided by that 2010 law were ignored in the Marion County Record case. Rather than follow that law, written specifically for such situations, Marion County authorities kicked it to the side of the road, essentially going rogue.
Had they followed the law as written, they would have issued a subpoena for any documents and other information they needed. Next, a court would have scheduled a hearing to listen to law enforcement’s argument and allow the newspaper to seek counsel and present its case for not divulging the information.
In essentially breaking into the newspaper’s operation without warning — confiscating computers, servers, cellphones and other records — they decided their own interpretation of Kansas law was more valid.
I believe they are dead wrong.
Under the shield law, those who wish to subpoena interview recordings, unpublished notes and other information gained through the newsgathering process must allow those being subpoenaed to have their day in court before proceeding.
At that hearing, parties seeking such information must establish by a preponderance of the evidence (my emphasis) in district court that the disclosure:
- Is material and relevant to the controversy for which the disclosure is sought;
- Could not, after exercising due diligence, be obtained by alternative means;
- Is of a compelling interest, defined as likely to be admissible in court and have probative value likely to outweigh any harm done to the free dissemination of information to the public.
The law has worked well for the past 13 years. Why was it ignored in this case?
If this unlawful intrusion on the rights of journalists stands, what source will step forward with information about political corruption if their identity can be revealed and their livelihood put in jeopardy? What journalist will feel safe receiving such information, knowing that they can no longer guarantee their sources confidentiality? What small town newspaper publisher will take a chance that his or her livelihood can disappear in a heartbeat?
This was a wakeup call for Kansas. Let’s hope we have the intestinal fortitude to get this one right, and right now.
Doug Anstaett was a working journalist from 1973 to 2004, when he joined the Kansas Press Association as executive director. Following his retirement in 2018, he served five more years as a consultant to KPA.
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