Press-Freedom Groups File Brief in Defense of Reporter Timothy Burke’s Right to Gather Newsworthy Content Online

WASHINGTON — On Friday, a coalition of free-speech groups filed an amicus brief in United States v. Burke, a federal criminal prosecution that seeks to convict reporter Timothy Burke for publishing unaired footage from the former Fox News talk show Tucker Carlson Tonight.

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.

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.”

The Court asked whether the text of the Wiretap Act criminalizes accessing generally accessible livestreams, and whether the First Amendment would allow such a reading. The issue is whether exceptions written into the Act must be proved as elements of the offense by the government, or an affirmative defense by the defendant.

Prosecutors claim that they’re entitled to bring Burke to trial regardless of whether the communications were accessible to the general public; instead, they say, Burke needs to prove as part of his defense that the communications were accessible. The amici argue that this would allow future government charges against journalists exercising their constitutional rights — or even charges against everyday people using the internet. 

Burke accessed and reported on the footage in question after viewing an unedited livestream of the Ye interview, which he claims to have discovered using publicly posted information to access an unencrypted URL.

In their brief, the free-speech groups state that the government’s indictment of Burke is part of an attempt to criminalize acts of journalism and violates long-established First Amendment protections. The groups state that the Act’s prohibition on intercepting electronic communications carves out conduct like “watching a video on an internet streaming platform or visiting a public-facing webpage,” but that the government’s interpretation of the law would initially fold in such activity before a defendant could meaningfully object. 

“The text of [the Act] plainly captures such conduct, and it would fall under the Act’s exceptions. But finding those exceptions to be affirmative defenses would distort the statute’s purpose and create intractable outcomes—and it would also run up against the First Amendment,” the groups write in the brief. They add that sections of the Act “make clear that the receipt of communications by intended parties or by the recipients of publicly-available content is not unlawful.”

Vera Eidelman, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said: 

“Imagine if, every time you went to a publicly-available website, watched a livestream, or happened upon a new URL, you could be vulnerable to prosecution by the federal government. That would change the Internet from an open universe for exploration to a place full of traps and “Do Not Enter” signs. The Wiretap Act cannot be read to allow each click to open us up for prosecution.”

Yanni Chen, legal director for Free Press, said: 

“The court’s decision in this case has massive ramifications for reporters and everyday people alike. Reporters must not be forced to refrain from using the internet to gather newsworthy content just because powerful entities want to keep what journalists find under wraps. And anyone should be able to use the internet without fear of prosecution. The court must clarify that the Wiretap Act requires prosecutors and plaintiffs to first consider the public or practical availability of any information. To hold otherwise risks turning the open internet on its head: The Act could be unleashed against anyone for routine browsing, and could be weaponized against journalists. That is just how far the government’s arguments go.”

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

“Police, prosecutors and thin-skinned politicians would love the ability to harass and punish journalists who use the internet for routine reporting whenever they so please. The government’s construction of the Wiretap Act would give them the perfect excuse to do so. It’s alarming that prosecutors are even proposing such a dangerous reading of the statute.  And for what? To salvage their unnecessary case against a journalist for exposing a billionaire pop star and former presidential candidate as an anti-semite? Surely that is not worth risking the future of digital journalism.”

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

“Free speech requires not only the right to speak freely, but also the right to gather and receive information. There are of course limits on what an investigative journalist (or any of us) can do—we may not break into a home or brute force our way into a password-protected server in order to discover new information. These actions would infringe on the privacy and security that all healthy and free societies must have. But the act of clicking on a link or visiting an open access website is an act of ordinary human curiosity protected by the First Amendment.”

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

“Prosecuting Burke sends a chilling message — to him and every journalist and whistleblower who considers revealing uncomfortable truths in the public interest, especially if it comes from publicly accessible files on the internet. The case also begs the question: Why is a journalist who exposed real antisemitism — words straight from the mouth of an influential American entertainer — the one being targeted by prosecutors?”