State to pay legal fees for student newspaper

HARRISONBURG — Harrisonburg’s top prosecutor and James Madison University’s student newspaper have reached a settlement under which the state will pay $10,000 in legal fees that the paper accumulated while arguing against the seizure of staff photographs documenting a riot.

However, the student paper also agreed to turn over to the prosecutor 20 photos that it did not publish.

Commonwealth’s Attorney Marsha Garst also said Tuesday that she will use subpoenas to obtain information from news organizations in the future, unless there is “an imminent need to prevent the loss of life or threat of bodily injury.”

The Washington-based attorney for The Breeze said the most important piece of the settlement between the student newspaper and Garst was her admission that a seizure of photos wasn’t the right way to go.

“I admire the commonwealth’s attorney for her willingness to stand up and say so,” said attorney Seth Berlin.

In a statement, Garst wrote of the “fear and concern” she caused the staff of The Breeze when executing an April 16 search warrant on the paper to obtain staff photos of the violence that occurred at Springfest six days earlier.

The off-campus block party led to the arrest of dozens and injuries to eight Harrisonburg police officers, authorities said.

Garst and several plainclothes officers went to The Breeze office April 16 and requested photos from Springfest that the newspaper declined to provide on the basis of reporter’s privilege and the federal Privacy Protection Act.

Garst demanded the photos be turned over and said she would ask law enforcement to take steps to retrieve them by confiscating all office electronics.

After initial resistance, Breeze Editor Katie Thisdell turned over about 900 photos, including more than 600 shot at Springfest.

Garst agreed not to look at the images while The Breeze mounted a legal defense.

As part of the settlement, Garst described the types of photos that would assist her in prosecutions. The Breeze has voluntarily turned over 20 photos to aid her. All of the other seized photos were returned to The Breeze.

Garst said her office sought the photos because the student newspaper had the best access to the events, during which authorities used pepper spray and tear gas to disperse a crowd of 8,000 college-age adults.

Garst also said her focus and that of law enforcement in obtaining the photos “was to assist in apprehending violent criminals.” She sought photos regarding thrown bottles and fires, among other requests.

An organization that supports high school and college newspapers called the settlement a message to authorities to follow the Privacy Protection Act, a 1980 law that protects newsrooms from unconstitutional seizures.

“A substantial payment of legal fees sends a powerful message to the next person of the consequences to not following the law,” said Frank LoMonte, executive director of the Arlington-based Student Press law Center. “The fact that the government is going to have to pay $10,000 is a meaningful sting. That sting ought to send a message to anyone trying to cut corners on the Privacy Protection Act.”

Thisdell, a rising JMU senior from Roanoke, is pleased that Garst will use the subpoena process in the future.

“This will allow the subpoenaed news organization the chance to assert various constitutional protections designed to maintain an independent press, and, if necessary, to have a judge decide the issue,” Thisdell said.

Thisdell said the experience of The Breeze also shows that student journalists “are trying to be real journalists and need to be treated as real journalists.”

LoMonte said the subpoena process allows a judge to examine the prosecutor’s need against the journalist’s privilege.

“It is important to make the government go through the process of proving the necessity,” he said. “Otherwise it becomes a tempting choice to use the media as a shortcut.”