Zurcher v. The Stanford Daily

On 9 April 1971, after a telephone call from the director of Stanford University Hospital to remove demonstrators, officers from the Palo Alto Police Department and the Santa Clara County Sheriff's Department responded to the call. The demonstrators had occupied the hospital's administrative offices for a day-and-a half. Once at the hospital, officers were unable to persuade the demonstrators to leave. As officers forced their way into a corridor at the west end of the hospital, demonstrators sprang through the doors at the east end and attacked a group of nine officers with sticks and clubs. All of the officers were injured. The officers were only able to identify two assailants. One officer, however, did see a photographer taking pictures at the east doors. No police photographers were present at the east doors and other possible eyewitnesses such as reporters and bystanders were stationed on the west side.

Two days after the melee, a special edition of the Stanford Daily, the university's student newspaper, published articles and photographs on the incident. The byline credit on the photographs was a Daily staff member and suggested that he was positioned at the east end of the hospital hallway, which enabled him to photograph the attack on the officers. One day after the Daily published the article and the photos, the Santa Clara County district attorney's office obtained a search warrant to search the Daily's offices for negatives, film and pictures of the demonstrations. The warrant made no suggestion that the newspaper or any staff member was involved with the criminal activity at the hospital. Four police officers search the Daily's offices later that same day. Some members of Daily staff were present at the time the search was executed. Staff members later claimed that police had gone beyond the limits of the search warrant, which the police officers denied.

A month after the search took place, the Daily and several staff members initiated a civil action in the U.S. District Court for Northern District of Columbia seeking declaratory and injunctive relief. The defendants in the suit included the chief of police, the district attorney and the judge who issued the search warrant. The Stanford Daily claimed that the search was unconstitutional because it violated its rights under the First, Fourth and Fourteenth Amendments. The district court denied the request for an injunction, but granted declaratory relief. The district court held that third party search warrants were unconstitutional under the Fourth and Fourteenth Amendments. The court reasoned that when the third party was a newspaper that the First Amendment issues were pertinent and that a search warrant was legal "only in the rare circumstance where there is a clear showing that (1) important materials will be destroyed or removed from the jurisdiction; and (2) a restraining order would be futile." An appeals court affirmed the district court's ruling.

Justice White, writing for the majority, took issue with the district court's analysis of what was constitutional under the Fourth Amendment.

It is an understatement to say that there is no direct authority in this way or any other federal court for the District Court's sweeping revision of the Fourth Amendment. Under existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. Nothing on the face of the amendment suggests that a third-party search warrant should not normally issue.

Justice White reasoned that the whether the third party was suspected of criminal activity was irrelevant. The only issue was whether there was "reasonable cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought."

The district court had also concluded that a search would be "physically disruptive" to newsroom operations; that it could potentially endanger any relationship with confidential sources; that such searches would expose the internal operations of a daily newspaper, and that the press would engage in self-censorship rather than risk certain information being sought by police. White wrote: "Properly administered, the preconditions for a warrant--probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness--should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices." Finally, Justice White reasoned that to obtain a search warrant required meeting certain standards that would eliminate any undue burden to the press.

Justice Stewart in a dissenting opinion joined by Justice Marshall believed that the search of the Daily's offices violated the First and Fourteenth Amendments' guarantee of a free press. Justice Stewart agreed with the district court's reasoning that search warrants would place an extraordinary burden on the operations of a daily newspaper. He wrote: "Policemen occupying a newsroom and searching it thoroughly for what may be an extended period of time will inevitably interrupt its normal operations, and thus impair or even temporarily prevent the processes of newsgathering, writing, editing, and publishing." He found the potential breach to confidential sources even more hazardous. "Protection of those sources is necessary to ensure that the press can fulfill its constitutionally designated function of informing the public, because important information can often be obtained only by an assurance that the source will not be revealed." Ultimately, he feared that such searches would result in "a diminishing flow of potentially important information to the public." Justice Stewart concluded that warrants should only be issued when a magistrate finds probable cause and determines that attaining information through the less-intrusive means of delivering a subpoena is impossible. The benefit of a subpoena from the press's standpoint regards the fact that with a subpoena the newspaper would be able to challenge the request before the search was conducted. In situations involving a warrant, the newspaper would not be able to respond until after a search when "the constitutional protection of the newspaper has been irretrievably invaded," Justice Stewart wrote.