ACLU Charges FBI Raid on Journalist Tim Burke Violates 1st Amendment Rights

By Avery Redula 

TAMPA, FL. – The U.S. Department of Justice (DOJ) is under fire for raiding journalist Tim Burke’s home by the Florida American Civil Liberties Union (ACLU).

The DOJ seized records Burke had regarding the outtakes of the interview between Tucker Carlson and Ye, the singer and songwriter formerly known as Kanye West. Ye made several offensive and antisemitic statements in this report.

The DOJ justified the raid by alleging Burke violated the Computer Fraud and Abuse Act, which protects against hacking and improper computer access. The government asserts Burke was unauthorized to access this interview footage, violating the act and rationalizing the seizure of materials.

The federal government also asserts that Burke is not a journalist because he was not working at a news outlet at the time of obtaining interview footage.

However, Burke has stated he was able to view the footage on Fox News in a way that was publicly and legally accessible. Burke also has a long career and history in journalism.

Several organizations partnered with the ACLU to send a letter to the DOJ to defend Burke and demand justification for the raid.

Within the letter, the ACLU calls upon the government to explain whether or not proper procedures were enacted during the raid. Additionally, since the government asserts Burke is not a journalist, the ACLU said there needs to be clarity on why he is not considered as such in order to protect free speech rights for other journalists not working for a traditional news outlet.

The ACLU asserts this information must be made public, or the public will question if the DOJ is abusing its power and undermining journalists’ freedom of speech.

The ACLU added, “one does not need to work full-time as a journalist in order to engage in protected journalism,” that the law “protects anyone ‘with a purpose to disseminate’ information to the public, regardless of whether their own byline is attached.

“And it’s quite common for journalists — including freelancers, producers, researchers, editors, news services and consultants — to provide research and documents for stories they do not themselves write, or even provide written copy without receiving a byline. That does not deprive them of constitutional protection. Courts have rightly warned against limiting the First Amendment’s press clause to established media.”

Additionally, the letter argues the interview footage should be released to the public, noting, “Among other things, Ye made anti-Semitic remarks, which are a matter of public concern…outtakes also showed that Carlson and Fox News may have intentionally omitted those portions of the interview to cast Ye in a more sympathetic light. Burke has a history of breaking news of national interest during his long career in journalism.”

In the final pages of the letter, ACLU and other organizations demand actions of the DOJ to enact oversight on prosecutors and the judge involved in the case, and investigate whether they followed proper discretion in regards to Burke’s first amendment rights and for the consideration of protecting journalistic interests and expression.

The ACLU also submitted an amicus brief to the 11th circuit court of appeals in support of Burke, and similar to the letter, argues the search warrant on Burke’s property should be released to the public in order to, “preserve press freedoms and increase transparency.”

The brief formally argues release of the warrant details will show on whether the government knew Burke was a journalist. If this is the case, said the ACLU, then the federal government was violating policy by failing to provide notice to Burke of the raid of newsgathering materials, as journalists are required to be given notice.

The ACLU also argues for the release of the footage and journalistic material gathered to be returned to Burke, so that he may continue his investigation into Tucker Carlson and Ye. The brief argues this is a violation of Burke’s First Amendment rights and instills fear into journalists of legal consequences if they choose to investigate powerful figures.

Organizations such as the Freedom of the Press Foundation agree with the assertions of the ACLU and the infringement of First Amendment rights.

Seth Stern, the advocacy director of this foundation, said, “A key function of the press is to report news that might embarrass powerful people and companies. If Burke is being investigated for locating and publicizing publicly available interview outtakes merely because Fox News would’ve preferred the footage remain secret, that poses serious First Amendment problems.”

“It would be extremely problematic — and unconstitutional — to criminalize access to publicly available information simply because powerful people would prefer it be kept private. It is antithetical to the Fourth Estate’s constitutionally-protected function to place a burden on journalists to intuit what publicly-available, newsworthy information public figures want kept secret, and to abide by their wishes,” the letter to the DOJ argued. The letter by the ACLU and others noted, their “interest is compounded by the nationwide outrage following the August police raid of the Marion County Record based on allegations of computer crimes by its reporters.  Given these and other investigations, journalists around the country are left uncertain about whether they could be prosecuted for acts of routine journalism on the mistaken grounds that they violated state or federal computer crime laws.”

About The Author

Avery Redula is a second year at UC Davis studying English. After undergrad she plans to attend law school, where she can pursue criminal law. She is most interested in cases regarding domestic violence and gang violence, as she learned from her summers spent at the DA's office that they are issues that most affect her home county of San Joaquin.

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