Originally published Aug. 6, 2007 by CNHI News Service.

By William B. Ketter
CNHI News Service

Distinctions between the press and the police in a democracy are clear and deliberate, and for good reason. They function very differently.

The purpose of the police is to catch crooks and protect the public safety. In doing so, they often seek to conceal information and operate away from the public eye.

The object of the press, by contrast, is to serve as the public’s watchdog over government, and to tell the news that people have a right or a need to know about. Thus journalists often disclose information that police and others in authority prefer remain unknown to the public.

A common assumption behind these countervailing functions is that the police will not misuse their official power to intimidate the press from doing its job, and the press will not take on the role of police informer.

In New Castle, Pa., that assumption has been tossed out the window. Police armed with a search warrant raided the newsroom of the New Castle News on July 25 and confiscated an investigative reporter’s computer and audio recording equipment.

Making matters worse, the complaint requesting the search and seizure came from a police chief whose wife is a reporter at the paper and who provided the details for the probable-cause affidavit that caused a local judge to issue the search warrant.

It is an oddball police-press case and it raises serious ethical questions for the New Castle Police Department, the police chief, the chief’s journalist wife and for the paper – which is owned by Community Newspaper Holdings Inc. of Birmingham, Ala., my employer.

In dispute is the intent and scope of a state privacy law that makes it a felony -- punishable by seven years in prison -- to record another person or persons in a phone conversation without their permission.

But there’s legal precedent in Pennsylvania and other states with similar restrictions to show that the purpose of two-way consent is to safeguard private citizens’ right to privacy, and isn’t meant to extend to journalists seeking legitimate news from public officials.

Jim Morris, the police chief for Northwest Lawrence County, may or may not have been aware of the difference and didn’t care. He accused veteran reporter Pat Litowitz of the New Castle News of recording a phone interview about a proposed police gun range without informing the chief.

Morris doesn’t contend that Litowitz misrepresented himself or tricked the chief into talking on the phone. Nor did he claim that Litowitz misquoted him or betrayed a confidence about details Morris intended to be off the record.

No, the chief told New Castle police he simply wanted to bring illegal phone recording charges against Litowitz and that evidence of the crime existed within Litowitz’ computer. He knew that for sure, he said, because his wife, reporter Debbie Wachter Morris, called him at the office to inform him she’d heard the recorded interview in the newsroom.

Wachter Morris said she felt morally obligated to inform her husband because he asked her to let him know if she ever became aware of anyone in the newsroom who recorded an interview with him.

Furthermore, she said, she had advised the managing editor of the paper a year earlier about the two-party consent phone rule and that Litowitz in particular had been warned not to record interviews unless he advised his news sources beforehand.

“I felt my husband was the victim of an alleged crime, and I was seeing it happen,” Wachter Morris told the newspaper. “I felt an obligation to bring it to the attention of my employer and my husband as the victim” – the former a year ago, the latter three weeks ago.

What she didn’t say, of course, is there’s a standard ethos in journalism forbidding reporters and others in the newsroom from making judgments about any individual related by blood or marriage or any situation where a conflict of interest might arise.

In this case, the conflict was not only obvious, it was damaging. A police raid on a newsroom to seize a reporter’s computer is an extreme action. It signals to the paper and the public that they better be awfully careful when dealing with the local police. Or, in this instance, the police chief’s spouse as well.

Any way you look at what happened, it sends a menacing message to the community.

And over what? Nothing, really. There was no controversy connected with the gun range story, and Litowitz didn’t even end up writing it. Another reporter did.

There’s also this critical detail. The police chief wasn’t available when Litowitz first called his office to talk about the gun range, but later returned the call to the reporter on his cellphone.

That raises the question of whether the police chief sought to entrap the reporter, who is considered a particularly aggressive journalist when pursuing stories. Litowitz said he always identifies himself as a reporter from the newspaper, and records interviews, in person and on the phone, to ensure greater accuracy.

Or was it an instance of Morris misusing his official position to get back at a reporter his wife disliked and didn’t get along with?

The motive for creating the clash with the paper is murky.

There’s no question police can search and seize equipment from a business if someone using it is suspected of a major crime such as drug dealing, illegal gambling activity or distributing pornography.

But appearing unannounced in a newsroom to seize a reporter’s computer because he failed to notify a police official he recorded an innocuous phone conversation doesn’t seem to meet the test of reasonableness.

Why didn’t the New Castle Police Department seek the recorded interviews the normal way authorities try to get information from the press -- through a subpoena instead of a search warrant?

A subpoena, unlike a search warrant, can be legally challenged as soon as it is served. You learn about a search warrant only when the police show up at your door.

Also, property cannot be confiscated under a subpoena without a court hearing. This protects against authorities grabbing computers and rummaging through sensitive files indiscriminately, a concern expressed by the New Castle News.

Thankfully, a judge quickly settled the case by ordering the computer returned to the newspaper, with the understanding that journalists at the paper would tell people when they are taping them during a phone interview.
---

William B. Ketter is vice president of news for Community Newspaper Holdings Inc.

Copyright © 1999-2008 cnhi, inc.