In May 2023, the FBI raided the home of a Florida journalist who published an unedited Fox News video of the rapper Ye, formerly known as Kanye West, making antisemitic comments.
Now, a multitude of press and civil rights organizations are calling for more transparency from the federal government about the reason for the raid, and for the return of seized items and materials “unrelated to any legitimate investigation.”
“If that newsgathering activity alone served as the basis for the search and seizure in this case, it would run afoul of the First Amendment,” wrote the organizations, including the National Press Club, American Civil Liberties Union and its Florida affiliate in an early January court filing. “Even if there was something more, the current secrecy and resulting ambiguity will chill legitimate newsgathering.”
So what led to this?
The journalist in question is Timothy Burke, who lives in Hillsborough County with his wife, Tampa City Councilwoman Lynn Hurtak.
You may have seen some of his work.
While working for the sports blog Deadspin, he and another journalist broke the highly-publicized story that a Notre Dame football linebacker was the victim of catfishing, or a romantic online hoax.
He’s also responsible for 2018 viral video that combined numerous clips of local news anchors from the Sinclair Broadcast Group giving the same speech across the nation about “the troubling trend of irresponsible, one sided news stories plaguing our country.” Some critics called the lockstep oration “insidious” and “propaganda” for anti-media sentiments promoted by former President Donald Trump.
Burke is now a freelance journalist and runs a media consulting firm.
In 2022, Fox News released an edited video of an interview between Ye and its former anchor Tucker Carlson. Burke obtained and helped news outlets publish the unedited interview, which showed Fox News had cut out the rapper’s antisemetic comments and one where he said he was vaccinated against COVID-19.
The federal government searched Burke’s home last year and seized equipment and materials, looking into whether he illegally obtained the video, such as through hacking, according to court records.
Burke and his attorneys adamantly deny that. They say in a legal filing Burke got the video through a publicly-accessible internet address.
He found the address, they say, in a list from a password-protected website for a third-party website that transmits broadcasts, and he got access after a confidential source provided him with a publicly-posted user ID and password for a demo account.
“Importantly, Burke ‘hacked’ no website, ‘stole’ no credentials, and violated no terms of service,” he and lawyers said in a legal filing. “He merely found something newsworthy on a publicly accessible site.”
The filing appeared in the United States Court of Appeals for the Eleventh Circuit. Burke is appealing after a judge ruled against his request for the return of seized materials and the release of the the search warrant’s probable cause affidavit.
“The government seized, and continues to hold the bulk of Burke’s newsroom,” his lawyers wrote. “Not only is he now restricted from publishing in a manner that is a prior restraint on his speech, the government’s seizure of files downloaded from public sources creates an immediate chilling effect on Burke’s and other journalists’ ability to do what they do – collect and report on information.”
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What do the groups say?
The press and civil rights groups filing in support of Burke defended his reporting method.
“It is unremarkable that journalists might gain access to information in ways that offend the subjects of their reporting — seeing a document unintentionally left out in public, for example, or overhearing a conversation at a crowded restaurant,” they wrote, joined also by the First Amendment Foundation, the Foundation for Individual Rights and Expression, Freedom of the Press Foundation and the National Press Club Journalism Institute.
“This should also be true online, at least with respect to information that is publicly available…” they continued.
They accuse the government of interpreting federal law in an overly-broad manner that chills news-gathering and flies in the face of government interference safeguards for the press.
“If there is more to the story that explains the government’s decision to investigate Burke, the public needs to know, so journalists can continue reporting without fear of investigation or prosecution,” they wrote, requesting the search warrant affidavit.
In October, more than 50 media organizations sent a letter to the U.S. Department of Justice demanding “greater transparency” about the raid to prevent a “chilling” effect on other journalists.
In an August pre-appeals filing against the release of information and seized materials, federal government lawyers took shots at whether Burke can be considered a “journalist.”
“Regardless of how Burke categorizes his work (as a ‘journalist’ or a ‘consultant’), Burke is not immune from investigation and prosecution if, as part of that work, he ‘finds things’ through criminal acts, such as unlawfully accessing a computer or computer system (in violation of 18 U.S.C. § 1030) and/or by unlawful surveillance or wiretapping (in violation of 18 U.S.C. § 2511),” they wrote.
A separate early January filing from the Reporters Committee for Freedom of the Press urged the court to “to consider the importance of a functional understanding of journalism in the application of First Amendment or other legal protections for newsgathering in this case.”
This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule is based in Tallahassee, Fla. He can be reached at DSoule@gannett.com. On X: @DouglasSoule.