A Big Win for the First Amendment in Retaliatory Case Filed Against Journalist Timothy Burke

WASHINGTON — On Friday, Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida dismissed seven of the 14 charges filed in the federal criminal prosecution against reporter Timothy Burke. Her ruling cites the arguments made in an amicus brief Free Press and other free-speech groups filed in June.

Prosecutors are seeking to convict reporter Burke for publishing unaired footage from the former Fox News talk show Tucker Carlson Tonight. Prosecutors are using the Wiretap Act, which prohibits “intercepting” “electronic communications,” in an attempt to convict Burke for finding and publicizing footage of, among other things, an antisemitic rant by Ye — formerly known as Kanye West — during a taping of Tucker Carlson’s since-cancelled Fox News show. Prosecutors claim that Burke’s actions involved the intentional interception of electronic communications and thereby violated the Act, statutory exceptions that include conditions where the “electronic communication is readily accessible to the general public.”

In citing the amicus brief from Free Press and other groups, Judge Mizelle recognized that the government has historically prosecuted journalists in ways that have chilled speech. The order takes the approach the brief suggests, which is to recognize how broadly the statute’s definition of “intercept” is, while requiring the government to prove the statutory exceptions as elements to avoid the constitutional issue.

Yanni Chen, legal director at Free Press, said:

“Judge Mizelle’s decision is a crucial victory for the First Amendment — for journalists, for internet users, and, most immediately, for Timothy Burke. The court recognized that the government’s theory not only posed serious threats to press freedom, but also to anyone engaged in everyday internet activity. At a time when journalists face increasing risks for doing their jobs of holding power to account, this ruling affirms the essential protections they deserve and sends a clear message: The law cannot be twisted to criminalize newsgathering.”

Jennifer Stisa Granick, surveillance and cybersecurity counsel with the ACLU’s Speech, Privacy, and Technology Project, said:

“Now is a time when press freedom is in jeopardy and it’s essential that courts stop prosecutors from twisting the law to silence news the government doesn’t like. The Wiretap Act protects our privacy; it doesn’t criminalize journalists whose reporting relies on online sources. Tim Burke’s case isn’t the first example of this kind of abuse, but hopefully it will be the last.”

Jane Bambauer, director of the Marion B. Brechner First Amendment Project and a professor of law at the University of Florida, said:

“It’s heartening to see that the court chose substance over form when interpreting the Wiretap Act, and made sure that it won’t come into disastrous conflict with free speech.”

Seth Stern, director of advocacy at the Freedom of the Press Foundation, said:

“We’re in an environment where government officials constantly experiment with new ways to criminalize journalism and speech that embarrasses them. The prosecution’s theory would have allowed not only journalists but anyone who watched a livestream to be forced to defend themselves in court to stay out of prison. It would be naive to think the government wouldn’t abuse that kind of power. We’re relieved that the judge stood up for the First Amendment.”

Bobby Block, executive director of the Florida First Amendment Foundation, said:

“This ruling is a significant victory for free expression and press freedom, and it will help restore confidence that journalists, researchers and members of the public are not breaking federal law simply by accessing or reviewing streaming information.”

Aaron Mackey, free speech and transparency litigation director with the Electronic Frontier Foundation, said:

“The district court’s ruling rightly recognizes that the Wiretap Act is a privacy law, rather than a broad statute that can be used to threaten journalists and others engaged in protected First Amendment activity.”

Background
The brief was filed in the U.S. District Court for the Middle District of Florida by the American Civil Liberties Union, American Civil Liberties Union of Florida, Electronic Frontier Foundation, Florida First Amendment Foundation, Free Press, Freedom of the Press Foundation, and Jane Bambauer, professor of law and director of the Marion B. Brechner First Amendment Project at the University of Florida.

In the litigation, the government endorsed a theory that exceptions to the statute are affirmative defenses, which meant that it would be able to prosecute Burke without first establishing that those exceptions do not apply. This lowers the burden for the government to bring defendants into court, and would make it easier for prosecutors to charge journalists who use livestreams as part of their newsgathering and reporting — even if those journalists were party to the communication or even if those communications were accessible to the public. The brief argues that this outcome would undermine the First Amendment, and could further enable prosecutors to target journalists.